Com. v. Reyes, D.

J-S95039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID REYES, :
:
Appellant : No. 371 EDA 2015
Appeal from the Judgment of Sentence January 9, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0001249-2013
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 14, 2017
David Reyes (“Reyes”) appeals from the judgment of sentence
imposed after a jury convicted him of first-degree murder, firearms not to be
carried without a license, carrying a firearm on public streets in Philadelphia,
and possessing an instrument of crime.1 We affirm.
The trial court thoroughly set forth in its Opinion the factual history
underlying this appeal, which we adopt as though fully recited herein. See
Trial Court Opinion, 10/23/15, at 2-9.
In January 2015, the matter proceeded to a jury trial, at the close of
which the jury found Reyes guilty on all counts. The trial court then imposed
an aggregate sentence of life in prison without the possibility of parole.
Reyes timely filed a Notice of Appeal. In response, the trial court ordered
1
See 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907(a).
J-S95039-16
Reyes to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Reyes timely filed a Concise Statement.
Reyes presents the following issues for our review:
I. Did the trial court err in not allowing [a] defense expert to
give his opinion that [Reyes] acted under a sudden and
intense passion resulting from serious provocation by the
victim[,] because this issue of voluntary manslaughter was
raised by the evidence and the [defense] witness … was a
registered psychologist[,] who was qualified by the court to
testify as an expert?
II. Did the trial court err in not giving an instruction on
voluntary manslaughter[,] in that [Reyes] acted under a
sudden and intense passion resulting from serious
provocation by the victim[,] when this issue of voluntary
manslaughter was raised by the evidence in this case?
III. Did the trial court err in not giving an instruction on
voluntary intoxication or drugged condition as a defense to
first[-]degree murder[,] when [Reyes] introduced evidence
on this issue?
IV. Did the trial court err in not giving the jury a charge on
diminished capacity that reduce [sic] first[-]degree murder to
third[-]degree murder[,] when evidence was presented at
trial on this issue?
Brief for Appellant at 2.
In his first issue, Reyes argues that the trial court committed
reversible error when it precluded the defense from presenting opinion
testimony from defense witness Alan Tepper, J.D., Psy.D. (“Dr. Tepper”),2
that Reyes had shot the victim under a sudden and intense passion resulting
from serious provocation by the victim (hereinafter “the proposed heat of
2
The trial court qualified Dr. Tepper as an expert in psychology.
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passion expert testimony”). See id. at 8. Reyes asserts that the following
facts were sufficient to raise the issue of reducing the first-degree murder
charge to voluntary manslaughter, and thus allow for introduction of the
proposed heat of passion expert testimony:
[T]he victim said to [Reyes] [“]fuck your mother[,”] and when
[Reyes] told the victim that his mother just died[,] the victim
provoked [Reyes], who[m,] the evidence showed[,] was in an
extremely bad mental state, by saying again to him [“]fuck your
mother[,”] and laughing about the victim[’]s acquittal for
[Reyes’s] nephew’s sexual assault case. If this provocation had
not happened[,] would there have been a homicide[?] The
opinion of Dr. Tepper would have said no ….
Id. at 11; see also id. at 10, 11 (asserting that “Dr. Tepper was going to
testify that d[ue] to the state of mind of [Reyes,] the actions of the decedent
were a trigger for voluntary manslaughter,” and “at the time of the
incident[, Reyes] was acting and reacting in a state of intense and sudden
passion provoked by the victim.”). Reyes contends that “[w]ords alone can
be sufficient provocation for voluntary manslaughter[.]” Id. at 11 (citing
Commonwealth v. Berry, 336 A.2d 262 (Pa. 1975)).
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly discussed
the applicable law and standard of review, and determined that it properly
excluded the proposed heat of passion expert testimony, as there was no
factual basis for a jury instruction on voluntary manslaughter. See Trial
Court Opinion, 10/23/15, at 13-18. The trial court’s sound rationale and
determination is amply supported by the law and the record, and we
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therefore affirm on this basis in rejecting Reyes’s first issue, see id., with
the following addendum.
Reyes’s characterization of our Supreme Court’s holding in Berry,
supra, is inaccurate. In that case, the defendant’s mother and her male
neighbor engaged in a verbal altercation, during which the mother spat at
the neighbor, and he responded by striking her, knocking her to the ground.
Berry, 336 A.2d at 235. Upon hearing his mother’s scream, the defendant
came immediately to the scene and observed his mother on the ground,
whereupon she informed him of the assault. Id. Five minutes later, the
defendant forced his way into the neighbor’s home and fatally wounded the
man. Id. The Supreme Court held that the trial court had erred in giving an
inaccurate jury instruction on the provocation necessary to establish
voluntary manslaughter, stating that,
[w]hile the words of an insulting and scandalous nature are not
sufficient cause of provocation, words conveying information of a
fact[,] which constitutes adequate provocation when that fact is
observed[,] would constitute sufficient provocation. The
threatened or immediate infliction of serious injury upon a
parent, spouse or child[,] because of the relationship of the
parties and the expected concern of one for the well[-]being of
the other, has occasioned courts to hold this conduct may be
sufficient provocation to reduce the killing to voluntary
manslaughter. We are constrained to hold that the trial court
misled the jury in suggesting that the provocation could not be
found to be legally sufficient in absence of a finding that the son
actually witnessed the assault upon the mother.
Id. at 264 (emphasis added; internal citations and paragraph break
omitted). To the contrary, as the trial court properly determined in the
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instant case, the victim’s actions fell well short of the provocation necessary
for voluntary manslaughter, as “[Reyes] was only subjected to insults of a
non-threatening nature.” Trial Court Opinion, 10/23/15, at 16 (citing
Berry).
We next address Reyes’s remaining three issues simultaneously, as
they all allege trial court error in its refusal to give three jury instructions
requested by the defense: voluntary manslaughter; voluntary intoxication or
drugged condition; and diminished capacity (hereinafter collectively referred
to as “the requested jury instructions”). In his second issue, Reyes contends
that a jury instruction on voluntary manslaughter was warranted under the
facts (and the expert opinion of Dr. Tepper), as discussed in connection with
Reyes’s first issue above. See Brief for Appellant at 12-16. According to
Reyes, this evidence met the three-prong test for establishing voluntary
manslaughter set forth in Commonwealth v. McCusker, 292 A.2d 286 (Pa.
1972). Brief for Appellant at 15.
In his third issue, Reyes argues that a jury instruction on voluntary
intoxication was warranted where
[Reyes] introduced eviden[ce] that he was under the influence of
the drugs of Percocet and Xanax at the time of the incident[;
Reyes’s] sister testified that she saw him the day before the
incident and [Reyes] was out of it[; Reyes] introduced expert
testimony that [he] had a binging behavior [] with drug abuse of
Opiate and Ben[z]odiazepine drugs[; and Reyes] testified that he
blanked out during the incident and had no memory of it.
Id. at 16.
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Finally, Reyes avers that a jury instruction on diminished capacity was
warranted where Reyes had presented evidence that he suffered from a
mental disorder that prevented him from formulating a specific intent to kill.
Id. at 19. Reyes concedes that his psychological expert, Dr. Tepper, “did
state an opinion … [that] one could not come to the conclusion that [Reyes]
acted with or without specific intent to kill.” Id. at 22. Reyes urges that,
nevertheless, the trial court should have issued an instruction on diminished
capacity, as “the evidence raised the issue of diminished capacity because
[Reyes] does not have to prove diminished capacity but must raise it in the
evidence[.]” Id.; see also id. (asserting that “there was other evidence
introduced by the defense that [Reyes] was suffering from a mental disorder
or abnormality[,] which came from [the testimony of Reyes] and [Reyes’s]
sister.”).
The trial court addressed Reyes’s claims in its well-reasoned Opinion,
thoroughly discussed the applicable law and standard of review, and
determined that the court did not err in declining to give the requested jury
instructions. See Trial Court Opinion, 10/23/15, at 18-25. The trial court’s
sound rationale and determination is supported by the law and the record,
and we therefore affirm on this basis as to Reyes’s three remaining issues.
See id.; see also id. at 14-18 (discussing the law on voluntary
manslaughter).
Judgment of sentence affirmed.
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J-S95039-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
-7-
Circulated 01/18/2017 04:47 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0001249-2013
V. SUPERIOR COURT
DAVID REYES 371 EDA 2015
OPINION
Byrd, J. October 23, 2015
After a jury trial commencing on January 6, 2015, defendant David Reyes was convicted
.of first-degree murder and related offenses on January 9, 2015. Immediately after entry of the
jury's verdict, defendant was sentenced to life imprisorunent without the possibility of parole and
an aggregate concurrent imprisonment term of eight and one-half (8 ~) to seventeen (17) years.
On February 2, 2015, defendant filed a notice of appeal. This court ordered defendant to file a
statement of matters complained of on appeal on February 17, 2015, and said statement was filed
on February 24, 2015·:
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Commw. v. David Reyes {s Page 1 of25
STATEMENT OF FACTS
On May 9, 2012, at approximately 5:34 p.m., defendant shot and killed Samuel Rivera at
the victim's place of employment, Jiffy Lube at 3658 Aramingo Avenue. Prior to this shooting,
defendant and Mr. Rivera had argued about the victim's relationship with defendant's sister
Jacqueline Reyes and her son E.C. At trial, Ms. Reyes testified that she had a relationship with
Mr. Rivera that began in 1996 and ended in 2003 because Mr. Rivera was allegedly abusive to
her and her family. In 2008, defendant accused Mr. Rivera of sexually abusing E.C. These
accusations led to criminal charges against Mr. Rivera, who was arrested and later acquitted.
N.T. 0 l/06/15, pp. 54-87, 114-138; N.T. 01/07/15, pp. 5-36; N.T. 01/08/15, pp. 9-34, 40-110,
116-199.
Before fatally shooting Mr. Rivera defendant had walked to· the Jiffy Lube with a
concealed weapon and engaged Mr. Rivera in an argument wherein he again accused Mr. Rivera
of sexually assaulting defendant's minor nephew E.C. According to defendant, Mr. Rivera then
referenced his acquittal of those charges during the following exchange between the two men:
Mr. Rivera: "Not guilty, not guilty, ah ha, ah ha, not guilty,
that's why I'm not guilty, you mad, you mad."
Defendant: "You a pedophile, you like to touch kids." He also
stated, "You a faggot and a bitch and you like to touch kids."
Mr. Rivera: "Oh, your fucking mother is a bitch."
Defendant: "What did you say?"
Mr. Rivera: "Oh, fuck your mother."
Defendant: "My mother just died."
Mr. Rivera: "Fuck your mother, not guilty, not guilty, ah ha, ah
ha."
During this exchange Mr. Rivera was inside a vehicle brought in for service. Mr. Rivera began
to point and yell at defendant and scream for someone to call police. As he continued to yell,
defendant pulled a handgun from his waistband and shot Mr. Rivera at least six (6) times. After
Commw. v. David Reyes I> Page 2 of25
the shooting, defendant walked away from the Jiffy Lube. He walked up an alleyway and then
onto Tulip Street, where he tossed his gun holster, black jacket, and ear buds. N. T. 01 /06/15, pp.
54-87, 114-138; N.T. 01/07/15, pp. 5-36; N.T. 01/08/15, pp. 9-34, 116-199.
William Nash, another Jiffy Lube employee, heard Mr. Rivera yelling for someone to call
police and dialed 911. Mr. Nash later gave two statements to police and identified defendant
from a photograph as the shooter. Mr. Nash also stated that defendant was wearing a white
sleeveless tee shirt and pants and was carrying a hoodie. Derrick and Shanta Wilson and their
sixteen-year-old daughter Jazmyn Edwards were inside their vehicle and exiting a shopping
center parking lot when they witnessed the murder. They heard several gunshots and saw
defendant shooting into a vehicle at the Jiffy Lube. Mr. Wilson did not see defendant's face, but
he observed that defendant was close to the vehicle and that the gun barrel was about one foot
and one-half (I ~) to two (2) feet away from the driver's side. Mr. Wilson followed defendant
to Tulip Street while Mrs. Wilson called police. Mr. Wilson and his family later returned to the
scene and told police the direction they observed defendant traveling. Later that day, Mr. and
Mrs. Wilson and their daughter provided statements to Homicide Unit detectives. Because
Jazmyn Edwards saw the shooter's face, homicide detectives visited the Wilson home the next
day and interviewed her a second time. At this second interview, she circled defendant's
photograph and identified him as the shooter. N.T. 01/06/15, pp. 114-138; N.T. 01/07/15, pp. 5-
36.
When Police Officer Jason Smaron arrived on the scene at 5:40 p.m., he observed
decedent inside the vehicle with his legs on the driver's side and his waist and torso leaning over
the console toward the front passenger seat. At approximately 5:56 p.m., Mr. Rivera was
pronounced dead at Temple University Hospital. Officer Smaron canvassed the area after
Commw. v. David Reyes {3> Pag~ 3 of 25
receiving the following description of the shooter: "[wjhite shirt, black pants, possibly the brand
Dickies, and a black hoodie." On May 10, 2012, Dr. Gary Collins performed the autopsy on Mr.
Rivera's body and prepared a report of his findings. At trial, Dr. Collins testified as an expert in
forensic pathology. He concluded to a reasonable degree of medical certainty that the cause of
death was multiple gunshot wounds and that the manner of death was homicide. Dr. Collins
noted that Mr. Rivera suffered six (6) gunshot wounds, three (3) of which were fatal due to
significant internal bleeding caused by the bullets striking vascular structures and major vital
organs. One gunshot wound caused immediate paralysis. A toxicology report indicated that Mr.
Rivera had recently used cocaine due to its presence in his urine. However, Dr. Collins opined
that the cocaine was not a contributing factor to Mr. Rivera's death. N.T. 01/06/15, pp. 100-112;
N.T. 01/08/15, pp. 9-34.
Dr. Collins stated that Mr. Rivera's injuries were primarily on his left side, consistent
with him being in the driver seat when shot. The gunshot wounds sustained by the victim were
also consistent with Mr. Rivera being shot initially and then turning his back in an attempt to
move away from the bullets, only to sustain additional gunshot wounds. Dr. Collins further
concluded to a reasonable degree of medical certainty that the absence of soot or stippling on Mr.
Rivera's body or clothing indicated that the gun barrel was at least two and one-half (2 Yz) to
three (3) feet away from the victim when the gun was fired. N.T. 01/07/15, pp. 9-34.
At about 7:00 p.m., Police Officer Ronald Sirianni responded to the crime scene and took
photographs of the evidence subsequently recovered. He observed two (2) garage bays at the
Jiffy Lube; one was closed and the other was open with a blue Ford Focus parked in front. There
was blood on the bottom front door of this vehicle and the front and rear passenger side doors
were closed. Officer Sirianni found six (6) fired cartridge casings on the left side of the vehicle.
Commw. v. David Reyes B Page4 of25
He later submitted them to the Firearms Identification Unit. After processing the crime scene,
Officer Sirianni walked around the comer where he recovered a black gun holster from the side
yard of 3547 Tulip Street. He also found a large black Adidas zip-up jacket and a pair of white
Sony ear buds on the side yard of 3531 Tulip Street. These items had been tossed by defendant
after the murder. N.T. 01/06/15, pp. 54-87; N.T.·01/07/15, pp. 67-69.
The vehicle was transported to the police garage. Police Officer Michael Maresca
inspected the vehicle and did not find any exit marks or strike marks on the passenger side of the
vehicle. He did find three (3) strike marks on the driver side. Trajectory rods were placed inside
these strike marks to determine the path of the bullets. The trajectory rods showed that the
shooter was close to the vehicle and that the gunshots were fired into the vehicle in a downward
fashion on the driver's side. One of the trajectory rods was placed into the front door frame on
the driver's side door. This trajectory rod indicated that one of the bullets traveled through the
door and into the decedent's body. Officer Maresca also found two (2) projectiles after cutting
the front seats open. One projectile was found inside the front driver seat and was defective due
to it striking an object. The other projectile was found inside the front passenger seat. This
projectile was not defective. In addition to finding these two (2) projectiles, Officer Maresca
found a pair of black rubber work gloves on the passenger seat and a vehicle work receipt. He
also observed blood on the passenger side. At trial, the parties stipulated that defendant did not
have a valid license to carry a firearm or a valid sportsman firearm permit. Police Officer
Raymond Andrejczak, an expert in firearms identification, examined the projectiles and
concluded to a reasonable degree of scientific certainty that they were all fired from the same
nine millimeter firearm. N.T. 01/06/15, pp. 88-99; N.T. 017/07/15, pp. 67-70; N.T. Ol/08/15, pp.
35-36.
Commw. v. David Reyes ·i Page 5 of 25
Detective James Dunlap testified as an expert in forensic video recovery and played a
videotape compilation of activity occurring at or around 5:30 p.m. from three (3) locations. The
first location was at the Jiffy Lube at 3658 Aramingo Avenue. The second location was a
Wendy's at 3600 Aramingo Avenue. The third location was A2Z Auto at 3577 Tulip Street.
The first videotape footage showed defendant walking southbound on Aramingo Avenue toward
the Jiffy Lube garage on May 9, 2012, at 5:31:45 p.m. He then exited the camera view. The
same footage showed decedent exit the Jiffy Lube garage and walk out of the camera view.
When decedent returned to the camera view, he walked in and out of the Jiffy Lube garage. The
decedent then entered a parked car and interacted with someone who was out of the camera
view. At 5:34:40, the video showed defendant's extended arm. The footage from the Wendy's
videotape showed defendant's extended arm with a gun in his hand. The videotape from A2Z
Auto showed defendant wearing a white shirt and carrying a jacket as he entered and ran out of
the camera view. N.T. 01/06/15, pp. 139-155.
Detective Dunlap also testified as an expert in cellular survey analysis and geolocation.
He examined defendant's Cricket cellular phone, number 267-600-4358, for May 9, 2012 for the
timeframe of 5:37:59 to 5:56:47. Detective Dunlap found that a cellular phone call had been
made forty ( 40) minutes before this timefrarne. During the approximate twenty (20) minute
timeframe, there were at least six (6) calls made from this cellular phone number. The first
cellular phone call after the murder occurred at 17:37:59 and was made to Mauricio Oscar
Latorre. This call lasted one minute and sixteen seconds and occurred about one minute and
one-half after defendant exited the camera view of the videotape compilation. Detective Dunlap
stated that the Jiffy Lube was within the geographic coverage area and that defendant's phone
was found to be within the general vicinity of that area. N.T. 01/07/15, pp. 37-52.
Cornmw. v. David Reyes l3 Page 6 of25
At trial, Crime Scene Unit Police Officer Brian Stark presented a diagram, based upon
the videotape compilation. It displayed an enlarged downward view of the area from the ·
Sleepy's store at 3664 Aramingo Avenue to the Monro Muffler store at 3650 Aramingo Avenue.
Officer Stark chose three landmarks as reference points of the areas that were shown on the
videotape and timed defendant's walking pace between each landmark. The first landmark was
the Sleepy's store, where defendant was observed at the store's property line at 4:33:19. The
second landmark was the Jiffy Lube driveway entrance at 4:33:43. Officer Stark determined that
the distance between the first landmark and the second landmark was seventy-four (74) feet and
that defendant's walking pace on Aramingo Avenue was about .32 seconds per feet. The third
landmark was the Jiffy Lube garage, where the decedent first exited at 4:34:14. This landmark
was at about fifty-seven and one-half (57 ~) feet away from the sidewalk in front of the Jiffy
Lube. Officer Stark determined that the distance between the second and third landmark was
ninety-four (94) feet, about one hundred and thirty (130) feet from the camera view. Defendant
continued at the same pace and in the same direction when decedent exited the Jiffy Lube
garage. N.T. 01/07/15, pp. 71-88.
Detective Sean Mellon from the Fugitive Squad was assigned to locate defendant. On
May 23, 2012, a warrant was prepared for defendant's arrest, and Detective Mellon went to
defendant's residence and to the homes of defendant's sisters, Diane Reyes and Jacqueline
Reyes. Defendant was not found at any of those addresses. On that same day, defendant's sister
Yvette Reyes contacted the U.S. Marshals and agreed to meet Detective Mellon at defendant's
residence. Yvette Reyes informed Detective Mellon that all of defendant's belongings were
gone. 'She also gave him defendant's cell phone number. On May 25, 2012 Detective Mellon
went to yet another address but he did not find defendant at that location. On May 30, 2012
Commw. v. David Reyes \) Page 7 of 25
Detective Mellon spoke with Yvette Reyes a second time. He also spoke to Cory Torres and to
Mauricio Oscar Latorre, who gave a statement. In addition to searching for defendant at those
addresses, Detective Mellon used the Real Time Crime Center on June 1, 2012 and placed
defendant's photograph in the Philadelphia Daily News on June 4, 2012. Detective Mellon also
returned to the homes of Diane Reyes and Jacqueline Reyes and talked to them a second time.
On June 10, 2012, Detective Mellon received an anonymous tip that defendant was at a specific
address in Jacksonville, Florida. On June 12, 2012 defendant was arrested and later extradited to
Philadelphia. At the time of his arrest, defendant was not forthcoming with his identity. N.T.
01/07/15, pp. 52-66.
At trial, defendant admitted to shooting decedent. However, despite decedent's
relationship with his sister, Jacqueline Reyes, defendant denied knowing that Mr. Rivera worked
at the Jiffy Lube. Defendant also denied walking to the Jiffy Lube to hunt down decedent. He
claimed to be in that area after deciding to "go for a long walk" to Castor and Ararningo A venues
and that he was carrying a concealed and unlicensed gun for self-defense. Defendant further
claimed that he did not realize that he had shot decedent because he "blanked out" and had no
control over himself when decedent made those comments about his mother, who had recently
died on April 12, 2012. Defendant testified that he had taken several Percocet and Xanax pills
on the day before the murder and that he was experiencing a hangover from these drugs at the
time of the shooting. He also claimed to feel a mixture of emotions that he did not know how to
handle at the time of the murder. Defendant's sister, Yvette Reyes, stated that she knew
defendant was abusing Percocet and Xanax pills. She stated that defendant was."out of it" and
was not making any sense to her when she saw him on the day before the murder. Defendant
further admitted to fleeing the scene and to calling Mauricio Oscar Latorre to tell him what
Commw. v. David Reyes & Page 8 of25
happened. Defendant stated that a friend transported him to Florida, where he stayed with a
cousin before he was located and apprehended. N.T. 01/07/15, pp. 52-66; N.T. 01/08/15, pp.
116-199.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Defendant raised the following issues in his Statement of Matters Complained of on
Appeal, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b):1
1. The evidence was insufficient to establish mens rea for first
degree murder. The Commonwealth did not establish beyond a
reasonable doubt that the defendant acted with specific intent
to kill.
2. The trial court erred in not allowing the defense expert to
testify before the jury and opine that the defendant acted in a
heat of passion. See NT 1-8-15. @201-209.
3. The trial court erred in not giving an instruction to the jury on
voluntary manslaughter (heat of passion following serious
provocation).
4. The trial court erred in not giving an instruction to the jury on
the diminished capacity defense as to first degree murder.
5. The trial court erred in not giving an instruction to the jury on
voluntary intoxication or drugged condition as to first degree
murder.
6. The defendant reserves the right to modify, amend, or
supplement this statement.
DISCUSSION
Defendant first contends that there was insufficient evidence to establish that he
committed first-degree murder. In evaluating whether the evidence was sufficient to sustain a
conviction, the appellate court "must view the evidence in the light most favorable to the
Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences
I
The following is a verbatim account of defendant's Statement.
Commw. v. David Reyes {) Page 9 of 25
upon which, if believed, the jury could properly have based its verdict, and determine whether
such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt."
Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). In applying this test, "the
entire record must be evaluated and all evidence actually received must be considered."
Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001) (quoting Commonwealth v.
Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)). In Commonwealth v. McKeithan, 504 A.2d
294, 299 (Pa. Super. 1986), the court noted that "[a] person may be convicted on the basis of
circumstantial evidence alone if reasonable inferences arising therefrom prove the fact in
question beyond a reasonable doubt." In reviewing a sufficiency of the evidence claim, "it is not
necessary that each piece of evidence be linked to the defendant beyond a reasonable doubt. It is
only necessary . . . that the combination of evidence link the defendant to the crime beyond a
reasonable doubt." Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977).
In Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002), the court
recognized that the "question of any doubt regarding the facts and circumstances established by
the Commonwealth is for the fact-finder to resolve 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 appellate court may not weigh the evidence and substitute its judgment for
the fact-finder. Commonwealth v. Taylor, 831 A.2d 661 (Pa. Super. 2003). Further, "it is for the
fact finder to make credibility determinations, and the finder of fact may believe all, part, or none
of a witness's testimony." Commonwealth v. Mack, 850 A.2d 690, 693 (Pa. Super. 2004).
Moreover, "(t]he Commonwealth is entitled to every inference reasonably arising from the
evidence" that it has presented. Commonwealth v. Figueroa, 456 Pa. 381, 384, 321 A.2d 658,
659 (1974).
Commw. v. David Reyes B Page IO of25
I
.,
J
To convict a person of first-degree murder, "the Commonwealth must demonstrate that
the defendant acted with malice and a specific intent to kill, that a human being was unlawfully
killed, that the defendant committed the killing, and that the killing was intentional, deliberate
and premeditated." Commonwealth v. Chamberlain, 612 Pa. 107, 129, 30 A.3d 381, 394 (2011),
cert. denied, 132 S. Ct. 2377 (2012). See also 18 Pa. C.S. §2502(a), (d). In Commonwealth v.
Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979), the court explained that "[mjalice will be
found if the actor committed a killing with an intent to kill].]" Specific intent to kill "may be
found from a defendant's words or conduct and may be inferred from the intentional use of a
deadly weapon on a vital part of the body of another human being." Common.wealthv. Agie, 449
Pa. 187, 190, 296 A.2d 741, 742 (1972). See also Commonwealth v. Arrington, 624 Pa. 506,
522, 86 A.3d 831, 840 (2014), cert. denied, 135 S. Ct. 479 (2014) (holding that "[s]pecific intent
and malice may be established through circumstantial evidence"). In Commonwealth v. Mason,
559 Pa. 500, 741 A.2d 708 (1999), cert. denied, 531 U.S. 829 (2000), the court explained that
"premeditation and deliberation exist 'whenever there is a conscious purpose to bring about
death.'" Id., 559 Pa. at 510, 741 A.2d at 713 (quoting Commonwealth v. O'Searo, 466 Pa. 224,
240, 352 A.2d 30, 37 (1976)).
At trial, the Commonwealth introduced evidence that defendant approached the decedent,
pulled out a gun, and shot him at least six times. As a result, decedent suffered six gunshot
wounds, three of which were fatal due to significant internal bleeding caused by the bullets
striking vascular structures and major vital organs. In Commonwealth v. Alston, 458 Pa. 412,
416, 317 A.2d 229, 231 (1974), the court reasoned that "(t]he use of a deadly weapon directed at
a vital organ of another human being justifies a factual presumption that the actor intended death
unless the testimony contains additional evidence that would demonstrate a contrary intent."
Commw. \I. David Reyes B Page 11 of 25
I.
Indeed, "it is well-established in Pennsylvania law that the specific intent to kill can be formed in
a fraction of a second, and may be found whenever the defendant acts with a conscious purpose
to bring about the death of the victim." Commonwealth v. Chambers, 602 Pa. 224, 245, 980
A.2d 35, 47 (2009), cert. denied, 560 U.S. 928 (2010). Here, defendant used a gun to repeatedly
shoot and kill an unarmed person who was inside a vehicle in public and in broad daylight.
Clearly, defendant's conduct was premeditated and deliberate.
Defendant's conduct further established that he possessed malice and a specific intent to
kill the decedent at the time of the shooting. See Commonwealth v. Bond, 539 Pa. 299, 305, 652
A.2d 308, 311 (1995) (noting that a gun is "clearly a deadly weapon"); Commonwealth v.
Solano, 588 Pa. 716, 736, 906 A.2d 1180, 1192 (2006), cert. denied, 550 U.S. 938 (2007) (noting
that one of the factors that "weighs in on the element of intent" is "the precise distance from
which the bullets were fired"); Commonwealth v. Rodgers, 500 Pa. 405, 409, 456 A.2d 1352,
1354 (1983) (ruling that "a shotgun blast to the head at short range" establishes the specific
intent to kill); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (holding that the
Commonwealth established specific intent to kill through evidence that defendant shot unarmed
victim); Commonwealth v. Chine, 40 A.3d 1239, 1242 (Pa. Super. 2012) (holding that evidence
of defendant shooting an "unsuspecting, unarmed victim" was a clear indication of specific intent
to kill). In addition.to the Commonwealth's evidence, defendant testified at trial and admitted to
shooting decedent. In light of these facts, the jury could reasonably conclude that defendant
committed this killing with intention, deliberation, and premeditation.
Moreover, defendant's flight from the crime scene and to another state was evidence of
his consciousness of guilt. Immediately after shooting the decedent, defendant walked away
from the scene and hid from police. He was later located and apprehended in Florida. See
Commw. v. David Reyes I3 Page 12 of25
Commonwealth v. Harvey, 514 Pa. 531, 538-539, 526 A.2d 330, 334 (1987) (concluding that "if
a person has reason to know he is wanted in connection with a crime, and proceeds to flee or
conceal himself from the law enforcement authorities, such evasive conduct is evidence of guilt
and may form a basis, in connection with other proof, from which guilt may be inferred"). When
viewed in the light most favorable to the Commonwealth, there was sufficient evidence
presented al trial that proved beyond a reasonable doubt that defendant committed first-degree
murder.
Defendant next asserts that this court erred in excluding defense expert testimony
regarding whether or not he acted in the heat of passion at the time of the killing. Prior to trial,
Dr. Allan Tepper conducted a psychological evaluation of defendant and prepared an expert
report that included his findings and conclusions regarding defendant's mental state. At trial,
this court admitted Dr. Tepper's expert testimony relating to defendant's diminished capacity
defense and voluntary intoxication defense. However, this court excluded Dr. Tepper's expert
testimony on whether or not defendant acted in the heat of passion because there was no
foundation for a jury instruction on voluntary manslaughter. In Commonwealth v. Miller, 627
A.2d 741, 748-749 (Pa. Super. 1993), the court explained that "[t]he decision to admit or exclude
expert testimony lies within the sound discretion of the trial court [and] the determination of the
trial court will not be reversed unless an abuse of that discretion is found to exist." In ruling on
the admissibility of such evidence, "the trial court must decide whether the evidence is relevant
and, if so, whether its probative value outweighs its prejudicial effect." Commonwealth v. Hawk,
551 Pa. 71, 77, 709 A.2d 373, 376 (1998).
This court did not abuse its discretion in excluding expert testimony on whether or not
defendant acted in the heat of passion. Indeed, expert testimony "is admissible in all cases, civil
Commw. v. David Reyes \} Page 13 of 25
- - J.
and criminal alike, 'when it involves explanations and inferences not within the range of
ordinary training knowledge, intelligence and experience.' " Commonwealth v. Walker, 625 Pa.
450, 486, 92 A.3d 766, 788 (2014) (quoting Commonwealth v. Leslie, 424 Pa. 331, 334, 227
A.2d 900, 903 (1967)). See also Pa. R. Evid. 702. Indeed, the court has also held that
"psychiatric evidence, coming as it does from a 'recognized and important branch of modern
medicine,' should be admissible at trial for the purpose of determining whether a defendant acted
in the heat of passion." Commonwealth v. McCusker, 448 Pa. 382, 387-388, 292 A:2d 286, 289
(1972). However, "[a]s with all expert opinion ... it is essential that the salient facts relied upon
as the basis for the opinion be in the record." Commonwealth v. Paskings, 447 Pa. 350, 355-356,
290 A.2d 82, 85 (1972). Stated another way, "[a]n expert's testimony is admissible when it is
based on facts of record and will not cause confusion or prejudice." Commonwealth v. Watson,
945 A.2d 174, 176 (Pa. Super. 2008). See also Commonwealth v. Blasioli, 685 A.2d 151, 167
(Pa. Super. 1996) (ruling that "only expert testimony which assists the jury is admissible").
Defendant was not entitled to expert testimony on whether or not he acted in the heat of
passion because there was no factual basis for a jury instruction on voluntary manslaughter. The
crime of voluntary manslaughter "involves a killing in a sudden and intense passion resulting
from a serious provocation or an unreasonable belief in self-defense." Commonwealth v. Cox,
546 Pa. 515, 539, 686 A.2d 1279, .1291 (1996), cert. denied, 522 U.S. 999 (1997). Voluntary
manslaughter "is an appropriate verdict for 'heat of passion' killings, where, 'at the time of the
killing, [the defendant] acted under sudden and intense passion [due toJ serious provocation by
the victim.'" Commonwealth v. Kim, 888 A.2d 847, 853 (Pa. Super. 2005) (quoting
Commonwealth v. Frederick Thomas, 552 Pa. 621, 640, 717 A.2d 468, 477 (1998), cert. denied,
528 U.S. 827 (1999)). Specifically, heat of passion includes "emotions such as anger, rage,
Commw. v. David Reyes ls Page 14 of25
,I.
sudden resentment or terror, which renders the mind incapable of reason." Commonwealth v.
Speight, 544 Pa. 451, 467, 677 A.2d 317, 324-325 (1996), cert. denied, 519 U.S. 1119 (1997),
and abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385
(2003), cert. denied, 543 U.S. 822 (2004).
In Commonwealth v. Copeland, 554 A.2d 54, 57 (Pa. Super. 1988), the court explained
that "[t]he passion which will reduce an unlawful killing to voluntary manslaughter must be
caused by legally adequate provocation." The law "is quite explicit that the determination of
whether a certain quantum of provocation is sufficient to support the defense of voluntary
manslaughter is purely an objective standard." McCusker, 448 Pa. at 389, 292 A.2d at 289. In
determining whether there was serious provocation, one must consider " 'whether a reasonable
[person] confronted by the same series of events, would become impassioned to the extent that
his mind would be incapable of cool reflection.'" Kim, 888 A.2d at 853 (quoting
Commonwealth v. Galloway, 485 A.2d 776, 783 (Pa. Super. 1984)).
In Commonwealth v. Busanet, 618 Pa. 1, 34, 54 A.3d 35, 55 (2012), cert. denied, 134
S. Ct. 178 (2013), the court clarified that "both passion and provocation must be established"
before a killing is considered voluntary manslaughter. That was not the case here. There was no
support for defendant's argument that he ac~ed under a sudden and intense passion resulting from
serious provocation by defendant. During their argument, decedent referred to his acquittal on
charges surrounding prior allegations that he sexually abused defendant's nephew. Mr. Rivera
also made offensive remarks about defendant's deceased mother. Obviously, defendant was
sensitive about these issues. He may have also harbored some anger or resentment toward
decedent given their past contentious history. Nevertheless, the evidence does not establish that
a reasonable person confronted with these circumstances would have become so impassioned
,j'
Commw. v. David Reyes 'b Page 15 of 25
f.
that he would have been incapable of cool reflection. See, e.g., Commonwealth v. Whitfield, 475
Pa. 297, 380 A.2d 362 (1977) (rejecting the decedent's prior sexual molestations of the
defendant at a young age as evidence of adequate legal provocation); Commonwealth v. Martin,
607 Pa. 165, 5 A.3d 177 (2010), cert. denied, 131 S. Ct. 2960 (2011) (concluding that the
decedent's sexual advances toward the defendant may have triggered the defendant's post-
traumatic flashback of childhood sexual abuse, but it did not render defendant incapable of cool
reflection). In Commonwealth v. Dews, 429 Pa. 555, 559, 239 A.2d 382, 385 (1968), the court
held that a defendant cannot acquire a voluntary manslaughter verdict "by recalling some past
injury or insult."
There is also no evidentiary support for the contention that defendant was seriously
provoked by the decedent. First, there was no evidence that decedent struck or physically
harmed defendant prior to or at the time of the murder or on any other occasion. The record
shows that defendant was only subjected to insults of a non-threatening nature. See, e.g.,
Commonwealth v. Berry, 461 Pa. 233, 238, 336 A.2d 262, 264 (1975) (acknowledging that
sufficient provocation may exist when the words convey "[tjhe threatened or immediate
infliction of serious injury upon a parent, spouse or child"). As the court held in Berry, "words
of an insulting and scandalous nature are not sufficient cause of provocation[.]" Id. See also
Commonwealth v. Cisneros, 381 Pa. 447, 451, 113 A.2d 293, 296 (1955) (holding that "[tjhe law
of Pennsylvania is clear that no words of provocation, reproach, abuse or slight assault are
sufficient to free the party from guilt of murder"); Commonwealth v. Walters, 431 Pa. 74, 244
A.2d 7 57 (I 968) (holding that the decedent cursing at and arguing with the defendant prior to
murder was insufficient evidence that heat of passion caused murder or that there was an
insufficient cooling period); Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277 (2011),
Commw. v. David Reyes J3, Page 16 of25
!I.
cert. denied, 132 S. Ct. 2711 (2012) (holding that the defendant was not sufficiently provoked
into heat of passion by argument with victim occurring shortly before murder or by other serious
issues in relationship); Commonwealth v. Sanchez, 623 Pa. 253, 315, 82 A.3d 943, 980 (2013),
cert. denied, 135 S. Ct. 154 (2014) (concluding that the defendant was not seriously provoked
when there was no gun in the decedent's possession and when the defendant "could have simply
retreated" from the situation).
Second, defendant armed himself with a gun, walked to the victim's place of employment
without invitation, and initiated the argument with decedent. The evidence presented by the
Conunonwealth shows that it was decedent who yelled for someone to call police when
defendant confronted him with a gun while he was inside a vehicle. The Commonwealth also
presented the testimony of forensic pathologist Dr. Collins, who stated that the nature of the
wounds sustained by the decedent were consistent with the decedent suffering gunshots then
turning his back in an attempt to move away from the bullets, only to suffer additional gunshot
wounds. Thus, the evidence showed that decedent made an attempt to retreat from the driver's
side of the vehicle after defendant started shooting at him. Accordingly, there was no error in
determining that there was inadequate provocation to merit jury instructions on voluntary
manslaughter. See Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (ruling that
"[t]he relevant inquiry is threefold: did the defendant actually act in the heat of passion when he
committed the homicide; did the provocation directly lead to the slaying of the person
responsible for the provocation; and was there insufficient 'cooling time' thus preventing a
reasonable man from using his 'reasoning faculties' and 'capacity to reflect").
The evidence clearly showed that defendant committed first-degree murder, instead of
voluntary manslaughter, as he possessed malice and the specific intent to kill the decedent. See
Commw. v. David Reyes ~ Page 17 of25
Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (I 972) (reiterating that "it has
long been the law that the use of a deadly instrument on a vital part of the body is sufficient to
establish the specific intent to kill"); Commonwealth v. Davis, 479 A.2d 1077, 1080 (Pa. Super.
1984) (ruling that "[a]ll that is required is a conscious, fully formed intent to bring about the
death of another"). See also Commonwealth v. Pirela, 510 Pa. 43, 51, 507 A.2d 23, 27 (1986)
(quoting Berry, 461 Pa. at 237, 336 A.2d at 264, which noted that voluntary manslaughter" 'is a
concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility' ").
In light of these facts, the introduction of expert testimony would have only caused confusion
amongst the jury. See Commonwealth v. Rounds, 518 Pa. 204, 209, 542 A.2d 997, 999 (1988)
(noting that "[w]ithout the facts, a jury cannot make any determination as to validity of the
expert's opinion"); Commonwealth v. Funke, 452 A.2d 857, 862 (Pa. Super. 1982) (quoting
Commonwealth v. Zeger, 186 A.2d 922, 925 (Pa. Super. 1962), which informed that "[o]ne of the
duties of a trial judge is 'to clarify the issues so that the jury may comprehend the questions they
are to decide' "). Because there was no factual basis to reduce first-degree murder to voluntary
manslaughter, this court did not err in excluding the expert testimony on this particular issue.
Defendant next contends that this court erred in refusing his requests to instruct the jury
on voluntary manslaughter, diminished capacity, and voluntary intoxication or drugged
condition. In reviewing a trial court's refusal to provide a jury instruction, the appellate court
reviews whether the jury instruction is warranted by the evidence presented in the case.
Commonwealth v. Baker, 963 A.2d 495 (Pa. Super. 2008). Indeed, a trial court has no obligation
"to instruct a jury ~pon legal principles which have no applicability to the presented facts."
Commonwealth v. Bohonyi, 900 A.2d 877,. 883 (Pa. Super. 2006) ( quoting Commonwealth v.
Buksa, 655 A.2d 576, 583 (Pa. Super. 1995)). Furthermore, an appellate court "may reverse not
Commw. v. David Reye~ .l5 Page 18 of25
where the court fails to use the specific language requested by the accused, but rather only where
the applicable law is not adequately, accurately, and clearly communicated to the jury."
Commonwealth v. Leber, 802 A.2d 648, 651 (Pa. Super. 2002). The Superior Court has also
explained that "[i]n examining the propriety of the instructions a trial court presents to a jury,
[its] scope of review is to determine whether the trial court committed a clear abuse of discretion
or an error of law which controlled the outcome of the case." Commonwealth v. Nyankun
Thomas, 904 A.2d 964, 970 (Pa. Super. 2006).
First, defendant contends that this court erred in denying his request to instruct the jury
on voluntary manslaughter. As previously discussed, there was no evidentiary support for a
voluntary manslaughter verdict. A defendant "is entitled to a jury instruction on voluntary
manslaughter only 'where the offense has been made an issue in the case and where the evidence
would reasonably support such a verdict.'" Kim, 888 A.2d at 852 (quoting Frederick Thomas,
552 Pa. at 640, 717 A.2d at 478). Because there was insufficient support for the conclusion that
defendant committed voluntary manslaughter, this court was not required to provide an
instruction regarding this offense because· it was inapplicable. As the court held in
Commonwealth v. Phillips, 946 A.2d 103 (Pa. Super. 2008), "'[i]nstructions regarding matters
which are not before the court or which are not supported by the evidence serve no purpose other
than to confuse the jury.'" Id. at 110 (quoting Commonwealth v. Patton, 936 A.2d 1170, 1176
(Pa. Super. 2007)). Consequently, there was no abuse of discretion or error of law in denying
defendant's request. Accordingly, defendant's claim has no merit.
Defendant further asserts that this court erred in denying his request for a jury instruction
on diminished capacity. In Commonwealth v. Laird, 555 Pa. 629, 645, 726 A.2d 346, 353
(1999), the court explained that a diminished capacity defense "is only available to a defendant
Commw. v. David Reyes £ Page 19 of 25
who admits criminal liability but contests the degree of guilt." A successful diminished capacity
defense "negates the element of specific intent and, thus, mitigates first-degree murder to third-
degree murder." Commonwealth v. Rosen, 615 Pa. 305, 308, 42 A.3d 988, 990 n. l (2012). Our
Supreme Court has further noted that "[djiminished capacity is an extremely limited defense,
which requires extensive psychiatric testimony establishing a defendant suffered from one or
more mental disorders which prevented him from formulating the specific intent to kill."
Commonwealth v. Cuevas, 574 Pa. 409, 418, 832 A.2d 388, 393 (2003).
A jury instruction on diminished capacity was not required in this case because there was
no factual predicate for this defense. In Commonwealth v. Weiskerger, 520 Pa. 305, 312-313,
554 A.2d 10, 14 (1989), the court held that "[a] defendant is entitled to an instruction on any
recognized defense which has been requested, which has been made an issue in the case, and for
which there exists evidence sufficient for a reasonable jury to find in his or her favor." In his
attempt to present a diminished capacity defense, defendant introduced the testimony of Dr. Alan
Tepper who testified as a psychological expert. Prior to trial, Dr. Tepper conducted a
psychological evaluation of defendant and prepared a report. At trial, Dr. Tepper discussed
several contributors to defendant's mental and emotional state at the time of the killing. Those
factors included defendant possessing a modest intelligence quotient score, abusing opiates and
benzodiazepines prior to the murder, having underlying emotional and mental health issues,
having an intense grief reaction to his mother's recent death, and having a contentious history
with the decedent. According to Dr. Tepper, defendant would experience a diminution in his
thinking, decision-making, and problem-solving abilities when he was intoxicated or emotionally
distraught. In spite of this observation, Dr. Tepper stated that he could not provide a conclusion
Commw. v. David Reyes 1$ Page 20 of25
on the "factual question" of whether or not a mental disorder or defect directly affected
defendant's ability to formulate the specific intent to kill.2
Certainly, whether or not a defendant possesses the specific intent to kill is a factual
question for the jury. Nevertheless, an expert may testify on "issues that ultimately must be
decided by the trier of fact, in this case, the jury." Commonwealth v. Huggins, 68 A.3d 962, 967
(Pa. Super. 2013). See also Pa. R. Evid. 704 (stating that "[a]n opinion is not objectionable just
because it embraces an ultimate issue"). Specifically, psychiatric expert testimony is admissible
" 'on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive
functions necessary to formulate a specific intent.'" Commonwealth v. Ventura, 975 A.2d 1128,
1141 (Pa. Super. 2009) (quoting Commonwealth v. Kuzmanko, 709 A.2d 392, 398 (Pa. Super.
1998)).
The requisite expert testimony was not provided in this case. Indeed, experts are not
required to use" 'magic words' when expressing their opinions." Commonwealth v. Baez, 554
Pa. 66, 101, 720 A.2d 711, 728 (1998), cert. denied, 528 U.S. 827 (1999). Rather, it is the
~ubstance of the expert's testimony that the court considers when determining whether the
2
The following exchange occurred between defense counsel and the expert:
[Defense Counsel]: Okay. But correct me if I'm wrong her, but
it's also, you can't give a final opinion right now to this jury whether he did or
did not actually form that intent that day, right?
[Expert]: No, not that factual question, no, sir.
N.T. 01/08/15, pp. 235-236, The following exchange occurred between the assistant district attorney and the expert:
[Assistant District Attorney]: Did I hear you right, it's your opinion today
to a reasonable degree of scientific and psychological certainty that you don't
know one way or the other as of May ninth, 2012, whether or not David Reyes
could fo1TI1 the specific intent to kill? Is that what you 're saying?
[Expert): Correct.
[Assistant District Attorney]: So you don't have an opinion as it relates to
that day.
[Expert]: Not to that fact.
N.T. 01/08/15, p. 239.
Commw. v. David Reyes g Page 21 of 25
requisite standard has been met. See id. Although Dr. Tepper observed that defendant's mental
and emotional state was influenced by several factors including anxiety and depression, the fact
that defendant was diagnosed with a mental disorder or defect was not dispositive. In
Hutchinson, 611 Pa. at 312, 25 A.3d 277, the court ruled that a "diagnosis with a personality
disorder does not suffice to establish diminished capacity." See also Ventura, supra (deeming
expert testimony of defendant's substance abuse, adjustment disorder, antisocial personality
features, and depressive features irrelevant to diminished capacity defense). There was no expert
testimony on the ultimate issue of whether or not defendant had a mental disorder or defect that
directly affected his ability to formulate the specific intent to kill. This case is akin to
Commonwealth v. McCullum, 558 Pa. 590, 596, 738 A.2d 1007, 1010 (1999), where our
Supreme Court held that a diminished capacity defense was not established because the expert
"made no mention of [the defendant's] cognitive functions of deliberation and premeditation at
the time of the murder or of his ability - or inability - to formulate the specific intent to kill."
Similarly, as aforementioned, the psychological expert in this case did not provide an opinion on
this salient issue.
In addition to presenting Dr. Tepper, defendant also presented the testimony of his sister
Yvette Reyes. Defendant also testified to support his claim. At trial, defendant's sister Yvette
described defendant as being "out of it" when she saw him on the day before the murder. She
stated that defendant was slurring and was not making any sense. Defendant testified that he had
taken too many Percocet and Xanax pills on the day before the murder and that he was
experiencing the aftereffects on the day that he committed this killing. Defendant also stated that
he felt a mixture of emotions that he did not know how to handle. He admitted to feeling angry,
sad, and confused, and to not feeling like himself. Defendant further claimed that he "blanked
Commw. v. David Reyes n Page 22 of 25
out" and lost control when the decedent made offensive remarks about his mother. The
testimony presented by defendant did not show that defendant was subjected to a mental disorder
or defect that prevented him from forming the specific intent to kill. Instead, such testimony
only led the jury to infer that defendant acted impulsively and without control when he killed the
decedent. It did not support a diminished capacity defense. In Commonwealth v. Terry, 501 Pa.
626, 632, 462 A.2d 676, 679 (1983), the court held that "simple lack of control is not available in
Pennsylvania either to negate mens rea or to establish diminished capacity in a murder
prosecution." See also Kuzmanko ( concluding that the defense theory that the defendant lost
control and acted in a fit of rage did not support diminished capacity defense); Commonwealth v.
Brown, 578 A.2d 461, 466 (Pa. Super. 1990) (holding that "a detailed description of appellant's
past bizarre behavior is not relevant to appellant's alleged diminished capacity at the time of the
criminal act"). In Commonwealth v. Washington, 547 Pa. 563, 571-572, 692 A.2d 1024, 1028
(1997), cert. denied, 523 U.S. 1006 (1998), the court reiterated the principle that "jury
instructions regarding particular crimes or defenses are not warranted where the facts of the case
do not support those instructions." Accordingly, this court did not err in refusing defendant's
requested diminished capacity instruction because the facts did not warrant the provision of such
instruction.
Defendant also claims that this court erred in denying his request for a jury instruction on
voluntary intoxication or drugged condition. Pursuant to Section 308 of the Crimes Code, 18 Pa.
C.S. §308, evidence of voluntary "intoxication or drugged condition of the defendant may be
offered by the defendant whenever it is relevant to reduce murder from a higher degree to a
lower degree of murder." Certainly, "an actor should not be insulated from criminal liability for
acts which result from a mental state that is voluntarily self-induced." Commonwealth v. Hicks,
Commw. v. David Reyes ·13> Page 23 of 25
483 Pa. 305, 311, 396 A.2d 1183, 1186 (1979). Nevertheless, the defense of voluntary
intoxication "can negate the intent necessary for a conviction of first-degree murder and reduce
the crime of murder from first to third degree." Commonwealth v. Fletcher, 580 Pa. 403, 419,
861 A.2d 898, 907-908 (2004), cert. denied, 547 U.S. 1041 (2006). To be entitled to a jury
instruction on voluntary intoxication, "there must be some evidence that the defendant is
overwhelmed or overpowered by alcohol or drugs to the point of losing his faculties or
sensibilities." Commonwealth v. Galvin, 603 Pa. 625, 651, 985 A.2d 783, 798 (2009), cert.
denied, 559 U.S. 1051 (2010).
Defendant was not entitled to this jury instruction because the evidence did not warrant
the jury's consideration of this defense. At trial, defendant testified that he had ingested several
Percocet and Xanax pills the day before the murder and had experienced the aftereffects of those
drugs when this killing occurred. He did not testify to ingesting drugs on the day of the murder,
and he never claimed to be in an intoxicated or chugged state on that day. Neither did he
establish that the ingestion of those drugs overwhelmed or overpowered him to the point where
he lost his faculties or sensibilities at the time of the killing. Although expert testimony was not
required to prove his defense, defendant presented the expert testimony of Dr. Tepper who stated
that he could not provide a definitive opinion on whether or not the drugs that defendant
previously ingested had any significant effect on him on the day of the murder. See N.T.
01/08/15, p. 240; Commonwealth v. Laurenson, 470 A.2d 122, 127 (Pa. Super. 1983) (holding
that "[ejxpert testimony is not necessary to prove intoxication").
As the court held in Commonwealth v. Padilla, 622 Pa. 449, 493, 80 A.3d 1238, 1263
(2013), cert. denied, 134 S. Ct. 2725 (2014), "[e]vidence that the accused ingested alcohol or
other intoxicating drug - without more - does not warrant a voluntary intoxication instruction."
Commw. v. David Reyes \1 Page 24 of 25
Without defendant showing more than experiencing a hangover from drugs that he took the day
prior, he failed to present sufficient evidence to warrant a jury instruction on this defense. In
Arrington, the court reiterated that " 'a trial court should not instruct a jury on legal principles
which bear no relationship to the evidence presented at trial.' " Id., 624 Pa. at 53 8, 86 A.3d at
850 (quoting Commonwealth v. Solano, 588 Pa. 716, 733, 906 A.2d 1180, 1190 (2006)).
Because the facts insufficiently supported a voluntary intoxication or drugged condition defense,
this court did not err in denying defendant's request for this particular instruction.
Even if error is found by this court's refusal to provide the above requested jury
instructions, "a new trial is warranted only where such error has been clearly prejudicial to the
appellant." Commonwealth v. Serge, 837 A.2d 1255, 1265 (Pa. Super. 2003). As a whole, this
court adequately, accurately, and clearly communicated applicable law to the presented evidence
and sufficiently guided the jury on how to conduct its deliberations. See Commonwealth v.
Williams, 581 Pa. 57, 80, 863 A.2d 505, 519 (2004) (holding that "[jjury instructions will be
upheld if they adequately and accurately reflect the law and are sufficient to guide the jury
properly in its deliberations"). Accordingly, defendant was not prejudiced by this court's rulings
at trial.
Therefore, in light of the foregoing, the judgment of sentence should be AFFIRMED.
BY THE COURT,
~11Gv}-
Sandy L.V. Byrd, J.
Commw. v. David Reyes fj Page 25 of 25