Com. v. Islas-Cruz, E. ( 2023 )

J-S38011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN ISLAS-CRUZ :
:
Appellant : No. 3100 EDA 2022
Appeal from the Judgment of Sentence Entered November 17, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000399-2022
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 30, 2023
Edwin Islas-Cruz appeals from the judgment of sentence, imposed in
the Court of Common Pleas of Montgomery County, after a jury convicted him
of first-degree murder on a theory of transferred intent. 1 After our review,
we affirm.
The trial court set forth the factual history of this matter as follows:
On November 14, 2022, the four-day jury trial commenced and
established the following facts. Corporal Tyler North of the
Norristown Police Department was on duty on September 18,
2021, and[,] just prior to 5:30 p.m., he heard several shots fired.
He responded to the scene and observed a male, later identified
a[s] Barry Fields, with an apparent gunshot wound to his head
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The trial court, sitting without a jury, also convicted Islas-Cruz of persons
not to possess a firearm based upon the trial testimony and certified copies
of Islas-Cruz’s relevant prior convictions.
J-S38011-23
outside of 641 Astor Street. The officer shut down the block for
the ensuing investigation[] and spoke with several witnesses.
Jodi Peregrina, a resident of 641 Astor Street[] and the victim’s
sister, testified that on the day of the murder[,] she was sitting in
front of her residence around 5:00 p.m. with her family. Prior to
the shooting, two unknown males walked past her[;] one was later
identified as [Josh] Agudio.
About twenty minutes later[,] a dark[-]colored vehicle pulled up
and double[-]parked[;] two males[2] jumped out [of] the
vehicle[]and started shooting. Ms. Peregrina and her family took
cover, but her brother was shot.
Lieutenant William Mitchell of the Montgomery County Detective
Bureau gathered surveillance video from 641 Astor Street. The
video captured a black Toyota Camry pull up around 5:20 p.m.
and two individuals exit the vehicle. Sixteen seconds later
shooting starts. Within eight seconds from the initial shooting,
the victim was shot. Ballistics evidence determined that there
were three different firearms that fired the casings found at the
scene.
The lieutenant learned that the vehicle was registered to
Christopher Ladson-Singleton[, who was living with Islas-Cruz’s
sister at the time of the murder.] Mr. Ladson-Singleton testified
that he had owned a 2019 black Toyota Camry, and that he had
given [Islas-Cruz] permission to borrow it on September 18, 2021.
In the course of the investigation, Lieutenant Mitchell reviewed
several prison calls from Agudio while incarcerated on [an] illegal
straw[-]purchase gun case. They revealed that Agudio received
discovery for the case and he found out that the other individuals
involved gave statements and told on each other.
Lieutenant Mitchell also obtained the contents of numer[o]us
Instagram accounts. He testified, inter alia, that[,] beginning on
August 14, 2021, he began to see postings in which Agudio was
calling individuals [“]rats.[”] A story was posted to Agudio's
Instagram account that stated, “Y’all niggas rats. Paperwork be
____________________________________________
2 The Commonwealth contends that the two men who exited the black Camry
were Islas-Cruz and his brother, Giovanni. As of the time of trial, Giovanni’s
whereabouts were unknown and there was a warrant for his arrest for murder.
See N.T. Trial, 11/16/22, at 102.
-2-
J-S38011-23
up soon. Zon [Edzon Castrejon], Snacks [Mark Castrejon], and
Reese.” On August 18, 2021, [Islas-Cruz’s] Instagram account
posted a video story in which [Islas-Cruz] was rapping about
“catching a body” and holding a firearm consistent with the Ruger
used during the homicide. On August 20, 2021, Agudio’s account
posted a Montgomery County Detective Bureau supplemental
report regarding his illegal straw purchase gun case, and the post
read, “Y’all told tonight”’—with emojis, including of a gray rat. An
additional post contained [] the supplemental report, tagging Mr.
Castrejon, Tyrese Dilworth-Simon, and Edzon Castrejon. On
August 21, 2021, [Islas-Cruz’s] account posted an Instagram
video. Also on August 21, 2021, Agudio’s account sent a direct
message to Edzon’s account. He posted a photo of more discovery
related to the straw[-]purchase case. [Islas-Cruz’s] Inst[a]gram
account story stated, “If it's rumors you a rat I’m not fucking with
you I don't give a fuck if it’s true or not show your work and push
something.” On August 28, 2021, a video is post[ed] to [Islas-
Cruz’s] account of him rapping about “that’s why I keep a 30 with
a laser so I can spray you.” Next, the lieutenant testified about []
messages from [the account belonging to] Agudio[], who was out
of jail now and presumably in control of his Instagram account, to
an account named Taz_odrama. The Lieutenant testified that
these messages indicated that Agudio was looking for a gun.
On September 2, 2021, there was a conversation between [Islas-
Cruz’s] and Agudio’s account[s] in which Agudio accuses Edzon
Castrejon and Mark Castrejon of giving [] statement[s] to police
implicating him in the illegal straw[-]purchase gun case. [Islas-
Cruz’s] account communicates with another Instagram account
attempting to find [out] who Agudio is, and relating that Agudio
was accusing Edzon Castrejon and Mark Castre[j]on of implicating
[Agudio] in the illegal straw[-]purchase gun case. On September
14, 2021, there were several video[s] posted on [Islas-Cruz’s]
account depicting a barrel of a gun [with a] laser [attached to it].
On September 16, 2021, [Islas-Cruz’s] account posted, “One false
move nigga you a goner been masking up way before Corona.”
On the day before the murder, on September 17, 2021, Agudio is
waving a gun around on Instagram live. He was rapping about
“getting back in blood.” On the same date, [Islas-Cruz’s] account
posted, “Bro know I’m going to shoot until my hand so hot so I
got to stay strapped niggas trynna kill me and the DA trynna find
a way to wheel me I was getting high hoping if I get booked just
write me I’m going to be in hell most likely.”
-3-
J-S38011-23
...
Agudio was arrested on September 29, 2021. Detective Anthony
Caso of the Montgomery County Detective Bureau interviewed
him. Agudio told the detective two conflicting versions of events.
First, he stated that he was shot at. He also told the detective
that, “they upped their guns” and he started shooting.
[On October 4, 2021,] Officer Jordan Girardi of the Nebraska State
Patrol was on patrol [when,] in the course of his duties[,] he made
a traffic stop for a speeding car. During the vehicle stop, he
smelled marijuana coming from the vehicle. In the front
passenger seat was an individual, identified as Pedro Gonzalez[,
who was] later determined to be [Islas-Cruz]. Pursuant to a
vehicle search, Officer Girardo located a Ruger 9mm handgun
under the front passenger seat where [Islas-Cruz] was seated.
Underneath the seat in front of the rear passenger area was a
9mm ghost handgun without a serial number. Giovanni Cruz had
been seated in the rear passenger seat. All occupants of the
vehicle were arrested. Officer Girardi later learned that there was
a warrant for [Islas-Cruz’s] arrest for first-degree murder. [Islas-
Cruz] was taken into custody by Detective Caso on October 10,
2021.
Detective David Schanes of the Montgomery County Detective
Bureau went to the murder scene on September 18, 2021,
collected the ballistic evidence, and submitted the evidence for
analysis. There were 39 fired cartridge casings ("FCC") at the
scene, four projectiles, and two fragments of projectiles. There
was also a projectile recovered at the autopsy. The FCC were
attributed to three separate firearms. Referring to a diagram, the
detective identified three groupings of the ballistics evidence.
There was a yellow grouping of 14 FCC, a pink grouping of 13 FCC,
and blue grouping of 12 FCC.
Detective Eric Nelson, an expert in firearm identification,
explained that his analysis of the FCC, he determined that three
different firearms fired the 39 FCC. One of the firearms recovered
in Nebraska fired 14 FCC. A second Nebraska firearm fired 12
FCC. The remaining 13 FCC at the murder scene came from an
unidentified firearm. The two Nebraska firearms included[] a
Ruger 9mm, model 9E semiautomatic, equipped with a flashlight
laser combination sighting device and an extended magazine
assembly. The second Nebraska firearm matched to the murder
scene was a Polymer80 ghost gun, 9mm caliber pistol. It was
-4-
J-S38011-23
submitted with an extended magazine. The expert determined
that it was the Polymer80 that fired the 14 FCC at the murder
scene and that the Ruger fired the 12 FCC found at the scene.
Detective Nelson also analyzed [] eight 9mm FCC found at [a
separate shooting that occurred in Norristown two days before the
murder.] He concluded that the Ruger pistol from the September
18, 2021 shootout[ also] fired the eight FCC [at the earlier
shooting].
Trial Court Opinion, 2/17/23, at 2-8 (citations to record and footnotes
omitted).
After the jury returned a guilty verdict, Islas-Cruz was immediately
sentenced to a mandatory term of life imprisonment. Islas-Cruz filed a timely
notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. He raises the following claims
for our review:
1. Should [] Islas-Cruz have been granted a jury charge on
imperfect self-defense?
2. Were issues properly preserved by [Islas-Cruz] at trial?
3. Should the evidence and testimony [regarding] the earlier
shooting [on] September 16, 2021 [have] been excluded from
trial under [Pennsylvania] Rule of Evidence 403?
4. Should evidence of violent rap lyrics from Instagram posts have
been excluded from trial under [Rule] 403?
Brief of Appellant, at 2-3 (reordered for ease of disposition; unnecessary
capitalization omitted).
Islas-Cruz first argues that the trial court abused its discretion in
refusing to instruct the jury on imperfect self-defense. “[O]ur standard of
review when considering the denial of jury instructions is one of deference—
-5-
J-S38011-23
an appellate court will reverse a court’s decision only when it abused its
discretion or committed an error of law.” Commonwealth v. Janda, 14 A.3d
147, 163 (Pa. Super. 2011).
Islas-Cruz asserts that Agudio fired first, from a handgun he had
concealed behind his body, and that Islas-Cruz did not fire until he had been
fired upon. See Brief of Appellant, at 9. He argues that he had “every
opportunity to [fire first], having approached [] Agudio with displayed
weapons, but did not, even though at the time[,] Agudio was a point-blank
target who was literally sitting on a step.” Id. Moreover, Islas-Cruz was
“trying to get back into [his] car, under heavy fire from Agudio (who fired 13
shots in 8 seconds, per the police firearms expert), when Agudio’s fatal bullet
struck the victim.” Id. Islas-Cruz argues that he “may have intended to
intimidate, he may have intended to provoke fear in [] Agudio, but there is a
valid and clear argument . . . that he did not intend to cause death or serious
bodily injury.” Id. at 11.
Islas-Cruz further argues that, contrary to the trial court’s finding that
Islas-Cruz “could not be found to be free of fault or provocation” because he
exited the car brandishing a firearm, see Trial Court Opinion, 2/17/23, at 10,
“mere display of a firearm, as [] Islas-Cruz [] did, has not precluded even
claims of actual self-defense.” Brief of Appellant, at 10.
Under 18 Pa.C.S.A. § 2503(b):
A person who intentionally or knowingly kills an individual
commits voluntary manslaughter if at the time of the killing he
believes the circumstances to be such that, if they existed, would
-6-
J-S38011-23
justify the killing under Chapter 5 of this title (relating to general
principles of justification), but his belief is unreasonable.
18 Pa.C.S.A. § 2503(b). In explaining the elements necessary to establish
unreasonable belief voluntary manslaughter—sometimes referred to as
“imperfect self-defense”—our Supreme Court has stated:
This self-defense claim is imperfect in only one respect—an
unreasonable rather than a reasonable belief that deadly force
was required to save the actor’s life. All other principles of
justification under 18 Pa.C.S.[A.] § 505 must [still be met in order
to establish] unreasonable belief voluntary manslaughter.
Commonwealth v. Tilley, 595 A.2d 575, 582 (Pa. 1991).
In order to establish the defense of self-defense under section 505, the
defendant must not only show that he was protecting himself against the use
of unlawful force but must also show that he was free from fault in
provoking or continuing the difficulty which resulted in the killing.
See 18 Pa.C.S.A. § 505. Additionally, “the defense of self-defense necessarily
requires that the appellant admit that the shooting was intentional in order to
protect [oneself].” Commonwealth v. Harris, 665 A.2d 1172, 1175 (Pa.
1995), citing Commonwealth v. Hobson, 398 A.2d 1364, 1368 (Pa. 1979).
Islas-Cruz is entitled to no relief.
First, Islas-Cruz did not concede that he was at the scene of the crime,
much less that he intentionally shot at Agudio in self-defense, as the law
requires. See Harris, supra. Rather, the defense theory of the case involved
denying that Islas-Cruz was one of the two people that jumped out of the
-7-
J-S38011-23
dark-colored vehicle and began shooting. During his opening statement,
defense counsel argued as follows:
Pay close attention to the evidence because, again, I don’t believe
that the Commonwealth is going to be able to definitively, beyond
a reasonable doubt, place my client in that vehicle at that
particular time on September 18th of 2021. So[,] keep that in
mind because that’s what they have to prove beyond a reasonable
doubt, number one, that my client was involved, and I suggest to
you that there’s going to be plenty of reasons to pause or hesitate
to suggest that my client was not in that vehicle at the time of this
incident.
N.T. Trial, 11/14/22, at 34. Having failed to admit that he intentionally shot
at Agudio, let alone that he was even at the scene of the crime, the defense
of imperfect self-defense is inapplicable, and the trial court did not err in
declining to instruct the jury on that defense.
Moreover, the evidence adduced at trial demonstrates that, upon pulling
up to the scene of the crime, Islas-Cruz leapt out of a car brandishing a
weapon. Thus, even if Agudio actually fired the first shots, Islas-Cruz was not
“free from fault in provoking . . . the difficulty which resulted in the killing.”
18 Pa.C.S.A. § 505. A review of Commonwealth v. Samuel, 590 A.2d 1245(Pa. 1991), on which Islas-Cruz relies to support his provocation argument,
does not alter our conclusion. There, the defendant’s sister, Yaffa, had asked
her husband, Richard, to move out of their apartment due to Richard’s drug
and alcohol problems. Yaffa asked defendant to move into the apartment “for
the dual purpose of assisting her financially and discouraging, by his presence,
Richard’s return.” Id. at 1246. That evening, defendant arrived at the
apartment with his clothes and a handgun, which he carried home in a pouch
-8-
J-S38011-23
each evening from his place of business. See id. Shortly thereafter, Richard
arrived at the apartment, visibly intoxicated. See id. With defendant
standing beside Yaffa with his handgun visible, Yaffa asked Richard to leave
or she would call the police. See id. at 1246-47. Richard refused and Yaffa
called the police. See id. at 1247. While she was doing so, Richard left the
room and walked towards the bedrooms, cursing at defendant. See id.
Defendant then went into the kitchen/dining area and sat down, placing his
gun back in its pouch on the table. See id. Yaffa completed her call to the
police and went to see what Richard was doing. See id. Richard then came
towards her carrying a sawed-off shotgun. See id. As Yaffa screamed, “he’s
got the gun, he’s got the gun,” Richard pumped the cocking device, loading a
shell into the chamber. Id. Defendant quickly entered the living room, with
his gun at his side. See id. Richard pointed his shotgun at defendant and
defendant fired three shots, two of which struck Richard in the chest, killing
him. See id. Defendant was charged with murder and possessing an
instrument of crime (“PIC”). He pled not guilty, alleging self-defense and
defense of others. See 18 Pa.C.S.A. §§ 505, 506. The trial court, sitting
without a jury, convicted defendant of voluntary manslaughter and PIC,
finding that defendant’s belief that he fired in self-defense was unreasonable,
as he had provoked the fatal encounter by previously displaying his handgun
to Richard. Thus, the trial court reasoned, defendant failed to establish that
he was free from fault, precluding his reliance on the doctrine of self-defense.
-9-
J-S38011-23
On appeal, this Court affirmed, and the Supreme Court granted allowance of
appeal.
The Supreme Court reversed, stating that “[i]n order to establish that
an actor was the aggressor or provoker and, hence, was not entitled to claim
a defense of self-defense or defense of others, there must be some evidence
to support the inference that the defendant’s acts constituted ‘an intent to
cause death or serious bodily injury.’” Id. at 1248. The Court concluded that
the facts of the case did not meet that requirement, as, prior to Richard
leaving the room and returning with a shotgun, there was “no suggestion that
[defendant] pointed the gun at[,] . . . physically assaulted[,] . . . threatened[,]
. . . or [] had any physical contact with [Richard].” Id. Rather, the defendant
only raised his gun and fired at Richard after Richard aimed his own gun at
the defendant. Moreover, “[e]ven if the initial display of [defendant’s] gun
could be seen as provocative, the balance between the parties shifted when
Richard left the room and defendant retreated to the dining area, setting down
his weapon. Richard’s re-entry into the living room with a sawed-off shotgun
placed him in the position of being the aggressor.” Id. at 1249.
Islas-Cruz attempts to extrapolate from the Supreme Court’s holding in
Samuel that the mere display of a handgun cannot be deemed to be
provocation for purposes of section 505. As a result, he would have us
conclude that Islas-Cruz’s act of exiting the car brandishing a gun was not
provocation as contemplated by the statute. He is wrong, and his reliance on
Samuel is misplaced. In Samuel, the Court held that the defendant merely
- 10 -
J-S38011-23
holding his gun at his side did not constitute provocation because: (1) there
was no other evidence of the defendant’s intent to cause death or serious
bodily injury, where he had held the gun at his side in a nonthreatening
manner; and (2) following an initial encounter, the defendant put down his
gun, Richard left the room but then re-entered with a sawed-off shotgun,
placing Richard in the position of aggressor. See Samuel, 590 A.2d at 1248–
49. In contrast, here, Islas-Cruz and his brother jumped out of their vehicle
with their guns drawn, after previously engaging with Agudio in an online
dispute, and approached Agudio, who was in a seated position on a step with
his weapon concealed. “[A] valid claim of self-defense cannot be made out
by the killer when the killer introduces a weapon into the encounter without
provocation. Such introduction operates to deny the killer’s assertion that he
was free from fault in provoking the difficulty.” Commonwealth v. Johnson,
331 A.2d 473, 476 (Pa. 1975). Here, Islas-Cruz “introduced a weapon into
the encounter without provocation.” Id. Accordingly, because he was not
free from fault in provoking the shooting, the trial court did not err in denying
Islas-Cruz’s request for an imperfect self-defense instruction.3
Islas-Cruz’s final two claims involve evidentiary rulings made at trial by
the court. Prior to addressing those claims, however, we must determine
whether he has properly preserved them. On May 11, 2022, the
____________________________________________
3 Given the provocative acts by the Islas-Cruz brothers, it is of no moment
that Agudio may have been the first to actually fire his gun. Indeed, the trial
court granted Agudio’s request for a self-defense instruction. See N.T. Trial,
11/17/22, at 8-11.
- 11 -
J-S38011-23
Commonwealth filed a motion in limine to admit certain bad acts evidence
under Pa.R.E. 404(b). This evidence included evidence of the Norristown
shooting that occurred two days before the instant shooting and social media
videos of Islas-Cruz rapping. The trial court never ruled on the
Commonwealth’s motion. Subsequently, at trial, the Commonwealth
introduced evidence of both the prior shooting and the social media videos.
At no time did defense counsel object to the admission of that evidence.
In 2001, Pa.R.E. 103(a) was amended to add the following
paragraph: “Once the court makes a definitive ruling on the
record admitting or excluding evidence, either at or before trial, a
party need not renew an objection or offer of proof to preserve a
claim of error for appeal.” Id. The amendment to Pa.R.E. 103(a)
is identical to the amendment to F.R.E. 103(a)[, which] became
effective on December 1, 2000. [See] Pa.R.E. 103(a), Comment.
Consistent with the above amendment to Pa.R.E. 103(a), a motion
in limine may preserve an objection for appeal without any need
to renew the objection at trial, but only if the trial court clearly
and definitively rules on the motion. [See] Pa.R.E. 103,
Comment (“A ruling on a motion in limine on record is sufficient
to preserve the issue for appeal, without renewal of the objection
or offer at trial.”); Trach v. Fellin, 817 A.2d 1102, 1107 n.3 (Pa.
Super. 2003) (en banc ). Conversely, if the trial court defers
ruling on a motion in limine until trial, the party that brought the
motion must renew the objection at trial or the issue will be
deemed waived on appeal. [See] F.R.E. 103, Advisory Committee
Notes—2000 Amendments (“[W]hen the trial court appears to
have reserved its ruling or to have indicated that the ruling is
provisional, it makes sense to require the party to bring the issue
to the court’s attention subsequently.”); [id.] (citing United
States v. Valenti, 60 F.3d 941, 945 (2d Cir. 1995)) (“Valenti’s
briefs and appendix contain no indication that he renewed at trial
his request for a ruling, a step clearly required when the trial judge
had earlier stated that he would reserve judgment until he heard
the trial evidence. The failure to renew the objection constituted
a waiver of the objection.”); see Markham v. Nat'l States Ins.
- 12 -
J-S38011-23
Co., 122 Fed.Appx. 392, 397 (10th Cir. 2004); Douthit v. Jones,
619 F.2d 527, 538–39 (5th Cir. 1980).
Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (finding
hearsay objection waived where appellants did not lodge hearsay objection to
evidence during trial, nor ask trial court to issue definitive ruling on motion in
limine).
Because Islas-Cruz did not object at trial to the admission of the
evidence of which he now complains, he has waived his claims on appeal.4
Judgment of sentence affirmed.
____________________________________________
4 As the trial court properly notes, Islas-Cruz has waived his objection to the
admission of the rap videos for two additional reasons:
First, counsel’s opposition to the videos [as stated in his written
response to the Commonwealth’s motion in limine] were to all of
the videos, [both] the ones [in which Islas-Cruz is] rapping and
the ones [in which] he is not. However, [Islas-Cruz’s] issue on
appeal makes a new argument by singling out the rap videos,
arguing that they should not have been admitted because they
“did not contain threats against any particular person” and only
“portray [Islas-Cruz] as an individual who made regular threats of
murder through his music[,]” which was highly prejudicial. See
[Rule 1925(b) Statement, 12/28/22, at ¶ 3]. This argument was
never asserted until this appeal. [S]econdly, this issue is waived
because counsel agreed in his brief that “[t]his [c]ourt should
permit the Commonwealth to introduce only one (1) of the
aforesaid social media posts.” See Brief in Opposition to Motion
in Limine, [] 5/27/22[, at 9]). Implicit in this concession is
counsel’s concurrence that [] this evidence was [admissible for] a
legitimate reason under the law[.] Therefore, the appellate issue
raised herein, namely that the social media rap videos should not
have been admitted in toto, has not been preserved, and is waived
on appeal. [See] Pa.R.A.P. 302(a).
Trial Court Opinion, 2/17/23, at 20.
- 13 -
J-S38011-23
Date: 10/30/2023
- 14 -