Com. v. Martinez, N. ( 2015 )

J. S12038/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NASUIL MARTINEZ, :
:
Appellant : No. 1680 EDA 2014
Appeal from the Judgment of Sentence February 28, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0002804-2011
CP-51-CR-0002773-2011
CP-51-CR-0002774-2011
CP-51-CR-0002775-2011
CP-51-CR-0011128-2011
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 09, 2015
Appellant, Nasuil Martinez, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following a waiver
trial and his convictions for one count of first-degree murder,1 four counts of
attempted murder,2 four counts of aggravated assault of a protected class
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502.
2
18 Pa.C.S. § 901.
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member,3 four counts of assault of a law enforcement officer,4 one count of
theft of a handgun,5 one count of robbery,6 and one count of possessing an
instrument of crime.7 Appellant contends the evidence was insufficient to
convict him of murder where the conviction was based upon his possession
of the murder weapon before and after the homicide. We affirm.
The trial court summarized the facts and procedural history of this
case as follows:
On December 9, 2010, [Appellant] was present at the
Black Pumpkin, a bar on Whitaker Avenue and Wyoming
Avenue in Philadelphia. Frank Parran was on duty
providing security. Parran was armed with a .45 caliber
pistol, which was housed in a holster with a faulty closing
mechanism. As a part of his duties, Parran searched
individuals entering and leaving the bar, including
[Appellant], who frequently entered and left the bar that
evening. At approximately 2:45 a.m. on December 10,
2010, Parran noticed that his firearm was missing from its
holster, having last checked to confirm that the firearm
was in his possession at approximately 2:00 a.m. Parran
reviewed the security footage taken by a surveillance
camera located within the bar and noticed that [Appellant]
was the only individual in his vicinity at the time that he
believed his firearm had been taken. Later that day,
Parran identified [Appellant] in a photo array.
3
18 Pa.C.S. § 2702.
4
18 Pa.C.S. § 2702.1.
5
18 Pa.C.S. § 3921.
6
18 Pa.C.S. § 3701.
7
18 Pa.C.S. § 907.
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In the early morning hours of December 10, 2010,
sometime before 3:00 a.m., Officer Kevin [Gorman] and
his partner were on patrol, driving eastbound on Allegheny
Street, when they noticed a silver Grand Marquis traveling
towards them at an extremely high rate of speed. The
officers initiated a traffic stop at Hope Street and
Westmoreland Street. Upon Officer Gorman exiting the
police vehicle, [Appellant], seated in the back passenger
side seat of the Grand Marquis, exited the vehicle and ran
northbound up Hope Street and Gorman pursued.
[Appellant] then scaled a chain-link fence on the side of
the street, turned, and shot twice at Gorman with a black
handgun, striking him once in the left shoulder. Officer
Gorman lost sight of [Appellant] at this time. The bullet
that struck Gorman was recovered in the sleeve of his
shirt, while two fired cartridge cases were later recovered
by the Crime Scene Unit. The remaining occupants of the
Grand Marquis, Miguel Montalvo, Neftaly Aulet, and Hector
Ortiz, were transported to the Philadelphia Police Station at
8th and Race Street. Montalvo and Aulet both identified
[Appellant] in a photo array. Later in the afternoon of the
same day, Gorman identified [Appellant] in a photo array
as the individual who had shot him.
At some point in mid-December, [Appellant] began
staying in the basement apartment of Tillie Moless on
Sanger Street in Philadelphia. This apartment had an
entrance separate from the rest of the building, where
individuals could enter and exit without entering any
common area of the residence. While staying with Moless,
[Appellant] constantly had a firearm in his possession,
either on his belt or in his hand. When Moless asked [him]
why he seemed nervous all the time, [Appellant] showed
her a TV news segment, indicating that he was wanted for
Gorman’s shooting.
At approximately 2:00 a.m. on December 21, 2010, the
decedent, Carlos Fernandez, was returning home from a
night at the Sugar House Casino in Philadelphia. Jeanette
Bobe, Fernandez’s wife, briefly met with him in the
downstairs portion of the house before returning upstairs
to return to bed. Shortly thereafter, Bobe heard multiple
gunshots coming from the first floor of her home. Bobe
went into the hallway in order to gather her two children
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and saw Fernandez lying on the floor. Bobe then locked
herself and her children in her room and dialed 911,
informing the police that her husband was shot and that
someone was in the house. While talking with the police,
Bobe heard a male voice through her bedroom door, telling
her to give him all the money in the house and that he
would leave them alone. Subsequent investigation
revealed that Fernandez had been shot a total of three
times in the chest, and one grazing shot to his arm. Two
bullets were recovered from the body.
Surveillance video footage from the casino
showed Fernandez wearing a distinctive set of
earrings and a watch on the night he was murdered.
According to Bobe, Fernandez was wearing the earrings
and watch when he returned home from the casino.
Police did not find any earrings or watch on
Fernandez following the murder.
Approximately three months before Fernandez’s
murder, September 27, 2010, [Appellant] and Fernandez
had been involved in an incident arising out of Fernandez’s
loaning of money to [Appellant’s] sister, Littles. Fernandez
had loaned Littles $300, keeping Littles’ car as collateral.
A friend of Littles, Darnella,[8] sought the return of the
vehicle without payment on the debt and the situation
spiraled into an argument. [Appellant] paid Fernandez the
$300 in order to “drop the confrontation,” while Darnella
yelled that she was “going to get someone to shoot
[Fernandez] or kill him, or whatever.” Fernandez
responded that he could “get guns” if needed, while
[Appellant] stated that he had already been shot before,
showing a scar.
On December 22, 2010, police received information that
[Appellant] might be located at Moless’s Sanger Street
residence. SWAT officers arrived at the house at
approximately 4:15 in the morning, together with police
from the 2nd District. Police subsequently entered the
home, searching for [Appellant]. Sergeant [Christopher]
Binns, together with Officers [Michael] Mocharnuk and
8
Our review of the record did not reveal her last name.
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[Francis] Whalen, descended into the basement,
announcing their presence. All three officers were
equipped with protective tactical gear, including body
armor and a Kevlar helmet. Upon entering the basement
the officers found a closed door and wall, separating the
basement into two halves. Sergeant Binns opened the
door, while Officer Mocharnuk searched the room beyond.
Officer Whalen remained behind the wall separating the
rooms. Immediately upon entering the room, Officer
Mocharnuk located and recognized [Appellant], who was
standing behind a bed towards the back wall.
Officer Mocharnuk ordered [Appellant] to show his
hands and informed Sergeant Binns that he had located
[him], whereupon [Appellant] disappeared from view.
Immediately upon losing sight of [Appellant],
approximately five to eight gunshots were fired from the
location where [Appellant] was last seen. Officer
Mocharnuk was not hit by the gunfire. Sergeant Binns was
struck in the left temple-area on his helmet during the
initial volley. The force of the bullet strike knocked Binns
into Mocharnuk, who heard the distinctive sound of the
bullet striking the helmet. Officer Whalen was struck in
the direct center of his vest, where a ceramic trauma plate
provided additional protection, by a bullet that punctured
the interior wall separating him from the room where
[Appellant] was located. The three officers returned fire
and retreated up the staircase to the main floor of the
building. [Appellant] fired a second volley of shots while
the officers were retreating.
Upon the officers[’] retreat, [Appellant] stated, “Come
on down, I got clips for days.” [Appellant] further stated
that he had a female hostage in the basement and that he
had booby-trapped the basement door with a grenade.
Officer [Inocencio] Amaro entered into negotiations with
[Appellant], centered largely on providing [Appellant] with
a cell phone. After approximately two hours, officers
heard a single gunshot from the basement. [Appellant]
then stated “Oh, shit, the gun went off” and requested
assistance. [Appellant] was bleeding from a wound in the
neck/shoulder area and was unconscious at the base of the
stairs when officers re-entered the basement, taking
[Appellant] into custody and providing medical assistance.
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Recovered from the basement were twenty-three
individual pieces of ballistic evidence and the pistol stolen
from Parran two weeks earlier.
[Appellant] was subsequently treated at Temple
University Hospital, which took custody of [his]
personal items upon his admittance, namely two
earrings and a watch, and gave these items to
[Appellant’s] mother. Detective [Kenneth] Rossiter
obtained a warrant and seized the two earrings and a
watch repair slip at [Appellant’s] mother’s home on April
28, 2011, while the watch itself was recovered the next
day from the repair shop. Detective Rossiter then asked
the victim’s wife, Bobe, if she could identify the earrings
and watch as belonging to her late husband. Bobe
identified the jewelry, stating that she had no doubt
that the jewelry was owned by Fernandez. In May,
2011, Tillie Moless, owner of the apartment where
[Appellant] was found, recovered a camera that had been
recording video during a forty-seven minute section of the
stand-off between [Appellant] and the police. In the
video, [Appellant] could be clearly seen in
possession of a semi-automatic firearm and wearing
the jewelry that would be recovered by the hospital
following the conclusion of the stand-off.
Trial Ct. Op., 8/13/14, at 2-7 (footnote and citations omitted).
At trial, Officer William Trenwith testified, inter alia, as follows: he had
been assigned to the Crime Scene Unit for 21 years. N.T., 11/5/13, at 37-
38. Fernandez did not have a watch or earrings on when he conducted his
investigation on the night of the murder. Id. at 47-48. He collected “three
fired cartridge cases .45 caliber” from the premises.
Dr. Gary Collins, deputy chief of the Medical Examiner’s Office,
testified at trial. Id. at 90. The entrance of the first gunshot wound he
described was located on the right side of the chest. Id. at 94. “The
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wound went through the chest from front to back and slightly from
the right side to the left side and it went through the heart and the
left lung and existed on the left side of his back.” Id. at 95. Another
gunshot wound went through the soft tissue of Fernandez’s chest, through
the “right lung, esophagus, left lung, and a bullet was recovered
somewhere in the soft tissues of the armpit on the left side.” Id. at 96. The
third gunshot wound was lower than the second gunshot wound. Id. The
fourth gunshot wound was a graze wound, “located on the inner aspect of
the arm.” Id. at 97.
Officer Gregory Welsh, “an expert in the field of firearms identification
and tool mark analysis[,]” testified at trial. Id. at 204. He “perform[ed]
ballistic analysis with respect to several fired cartridge casings [“FCC”] as
well as a .45 handgun related to [the] homicide and shootings of police
officers[.]” Id. at 205. He testified regarding the three separate incidents.
Id. at 207. The FCC’s from Officer Gorman’s shooting on Hope Street
and the SWAT team shootings on Sanger Street were determined to
have been fired from the same gun. Id. at 222. The FCC’s from the
homicide scene were fired from the same gun. Id. at 225-26. Welsh
responded in the affirmative when asked: “Were the findings that you made
with respect to matching up the fired cartridge casings from all three scenes
done so within a reasonable degree of scientific certainty?” Id. at 227.
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Appellant was convicted following a three day non-jury trial. On
February 28, 2014, he was sentenced to an aggregate sentence of life plus
80 to 160 years’ imprisonment. Post-sentence motions were filed and
denied. This timely appeal followed. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 9 The trial
court filed a responsive opinion.
Appellant raises the following issue for our review:10 “Was not the
evidence insufficient to sustain [A]ppellant’s conviction of murder where the
conviction was based upon [A]ppellalnt’s possession of the murder weapon
before and after the homicide?” Appellant’s Brief at 2.
9
Appellant filed a Rule 1925(b) statement. He then filed a request for an
extension of time to file a Rule 1925(b) statement upon receipt of all of the
notes of testimony. The court entered an order on June 30, 2014, granting
the request for an extension of time. Appellant filed a supplemental 1925(b)
statement on July 7, 2014. See Pa.R.A.P. 1925(b)(2) (“Upon application of
the appellant and for good cause shown, the judge may . . . permit an
amended or supplemental Statement to be filed. Good cause includes, but is
not limited to, delay in the production of a transcript necessary to develop
the Statement . . . .”).
10
We note that Appellant raised an additional issue in his supplemental Rule
1925(b) statement. He stated: “The sentences imposed consecutively to life
without parole were unreasonably excessive.” This issue was not raised in
Appellant’s brief on appeal and is therefore waived. See Commonwealth
v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (“issue included in appellant’s
‘Statement of Questions Involved’ was waived by failure to address issue in
brief itself”).
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Appellant contends the evidence was insufficient to convict him of
murder of the first degree.11 He avers “[t]he conviction for murder . . .
rested on circumstantial evidence that [A]ppellant was in possession of
the murder weapon both eleven days before the killing and more than a day
after the killing and [A]ppellant’s possession of jewelry similar in appearance
to (and identified as) that having belonged to decedent.” Id. at 11
(emphasis added). He avers “[t]here was no evidence that [A]ppellant had
any animosity toward the decedent.” Id. at 12. Appellant claims
11
Initially, however, we note that Appellant's argument consists of two and
one-third pages in support of his insufficiency of the evidence claim. He
cites the elements of first degree murder with reference to the statute. He
cites one case without setting forth the principle for which it is cited. See
Pa.R.A.P. 29119(b). Appellant’s Brief at 11-13. This court has stated:
Pursuant to the Pennsylvania Rules of Appellate Procedure,
failure to cite to relevant authority provides a basis for us
to find waiver. See Pa.R.A.P. 2119; Commonwealth v.
Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (holding
that appellant’s failure to properly develop claims in brief
rendered the claims waived); Commonwealth v. Drake,
[ ] 681 A.2d 1357, 1360 ([Pa. Super.] 1996) (explaining
that this Court will not become the counsel for an
appellant, “and will not, therefore, consider issues . . .
which are not fully developed in [the] brief[ ]”) (citation
omitted). Nevertheless, considering that the trial court
addressed [the a]ppellant’s [. . .] claim in its well-
reasoned Rule 1925 opinion, we consider the merits of [the
a]ppellant’s claim.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 n.3 (Pa. Super. 2012),
appeal denied, 64 A.3d 630 (Pa. 2013). Similarly, in the instant case,
because the trial court addressed Appellant’s claim in its well-reasoned Rule
1925(a) opinion, we will consider the merits of Appellant’s insufficiency
claim. See id.-9-
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“[a]lthough the Commonwealth argued that robbery was the motive, that is
inconsistent with the facts that the decedent still had rings, a bracelet and
cash on him.” Id. (emphasis added). Appellant states “[t]he homicide
conviction rests entirely on [A]ppellant’s exclusive possession of the firearm
before and after the killing . . . .” Id. at 13. We find no relief is due.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(citations and quotation marks omitted).
Section 2502(a) of the Crimes Code defines first degree murder:
(a) Murder of the first degree.─A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.
18 Pa.C.S. § 2502(a).
Our Pennsylvania Supreme Court has stated:
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In order to sustain a conviction for first-degree murder,
the Commonwealth must demonstrate that a human being
was unlawfully killed; the defendant was responsible for
the killing; and the defendant acted with malice and a
specific intent to kill, i.e., the killing was performed in an
intentional, deliberate, and premeditated manner. Specific
intent may be established through circumstantial
evidence, such as the use of a deadly weapon on a
vital part of the victim’s body.
Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citations
omitted and emphasis added). “[P]roof of a motive is not necessary to
establish a specific intent to kill.” Commonwealth v. Robinson, 364 A.2d
665, 669 (Pa. 1976) (emphasis added).
The trial court found the evidence was sufficient to establish that
Appellant killed Fernandez. The court opined:
The testimony of multiple witnesses established that
[Appellant] was present in The Black Pumpkin the night
that Parran’s firearm was stolen. Parran testified that
[Appellant] was the only individual with the opportunity to
steal the weapon. Both the driver of the Grand Marquis
and a fellow passenger testified that [Appellant] was
present in the car when police pulled it over shortly after
the group left the bar. Those same individuals, as well as
Officer Gorman, testified that [Appellant] fled from the
vehicle. Officer Gorman subsequently identified
[Appellant] as the individual who had shot him in the
shoulder after being shown a photo array containing
[Appellant’s] photo. Ballistics analysis confirmed that
Parran’s stolen firearm was used in Officer Gorman’s
shooting. Tillie Moless testified that [Appellant] had
a firearm in his possession for the entirety of his
stay at her house, keeping it either in his hands or in his
belt. Ballistics analysis further confirmed that this
same firearm was used in the early morning hours of
December 21,2010 to shoot and kill Fernandez in his
home. On December 22, 2010, the day after
Fernandez’s shooting, this firearm was in
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[Appellant’s] possession when SWAT officers
entered the basement and engaged [Appellant] in a
shoot-out and standoff. A forty-seven minute video
of the standoff clearly showed [Appellant]
possessing Parran’s handgun. After the shootout, that
handgun was seized by police, allowing ballistics
analysis that not only tied that firearm to the
shooting of Fernandez, but also to the prior shooting
of Officer Gorman, and the subsequent shooting of
SWAT officers Binns and Whalen. That [Appellant]
possessed and used the murder weapon, both before and
after the murder was compelling evidence that he shot
Fernandez.
Moreover, there was additional compelling evidence to
establish that [Appellant] was the killer. Pictures taken
from the Sugar House Casino surveillance cameras
clearly showed Fernandez wearing a pair of diamond
clustered earrings and a watch, all of which were
missing after his death. The video of the standoff
the day after the murder showed [Appellant]
wearing an identical pair of diamond cluster earrings
and watch. The testimony of Detective Rossiter
established that this jewelry was taken into the possession
of Temple University Hospital when [Appellant] was
receiving medical care. These same pieces of jewelry were
released to [Appellant’s] mother, who still had the earrings
when police arrived with a seizure warrant. The watch was
later recovered where [Appellant’s] mother had taken it for
repair. All pieces of jewelry were positively identified by
Ms. Bode upon their recovery as being the jewelry
belonging to Fernandez.
. . . Evidence of [Appellant’s] intent to kill may be
inferred from his shooting Fernandez three times in
the chest.
Trial Ct. Op. at 8-10 (citations omitted and emphases added).
The trial court found that “there was clearly sufficient evidence for a
fact finder to conclude that [Appellant killed] Fernandez in the early morning
hours of December 21, 2010.” Trial Ct. Op. at 10.
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Appellant’s claim that the Commonwealth failed to prove motive is
meritless. See Robinson, 364 A.2d at 669. Appellant’s contention that the
earrings and watch were not distinctive in unavailing. It is not for this court
to substitute its judgment for that of the fact-finder. See Ratsamy, 934
A.2d at 1235-36, 1237. A conviction for first-degree murder can be
sustained based upon circumstantial evidence where a deadly weapon was
used on a vital part of the decedent’s body. See Ramtahal, 33 A.3d at
607. We find no relief is due. See Ratsamy, 934 A.2d at 1235-36;
Widmer, 744 A.2d at 751.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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