Com. v. Arias, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAMIS ARIAS
Appellant No. 1975 MDA 2014
Appeal from the Judgment of Sentence October 14, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001414-2013
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED JANUARY 22, 2016
Appellant, Adamis Arias, appeals from the judgment of sentence
entered October 14, 2014, in the Court of Common Pleas of Luzerne County.
No relief is due.
On February 25, 2013, Arias was arrested for the shooting death of
the victim, Angel Villalobos, in Hazleton, Pennsylvania. At trial,
Commonwealth witness Rafael Santana Nunez1 testified that on February 23,
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*
Retired Senior Judge assigned to the Superior Court.
1
As will be discussed below, Nunez initially failed to appear to testify despite
the numerous efforts of police to secure his presence at trial. Over defense
objection, the trial court declared Nunez to be an unavailable witness under
Pa.R.E. 804(b)(1) and permitted the Commonwealth to read into evidence
Nunez’s preliminary hearing testimony. When Nunez appeared the following
day willing to testify, the trial court ordered that the preliminary hearing
testimony be stricken from the record and Nunez proceeded to testify.
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2013, he observed Arias, who was waiving a firearm, confront the victim on
West Maple Street and ask where his money was. See N.T., Trial, 8/12/14
at 545-46. Nunez testified that he then heard Arias fire his firearm at the
victim, who was shot in the back. See id. at 547-48. Nunez later identified
Arias as the shooter from a police lineup. See id. at 549.
Dr. Gary Ross, who conducted the autopsy on the victim, was qualified
as an expert in the field of forensic pathology. Dr. Ross testified that the
victim sustained two gunshot wounds. Dr. Ross opined that the first bullet
entered the victim’s back near his lower spine, and would have caused the
victim to fall to the ground. See id. at 493. Over defense objection, Dr.
Ross testified that the second bullet, which entered near the victim’s pelvis,
was fired while the victim was lying on his back. See id. at 497-98; 501-02.
A jury convicted Arias of third degree murder. The trial court
sentenced Arias to a term of twenty to forty years in prison. Arias filed a
motion for reconsideration of sentence, which the trial court denied. This
timely appeal followed.
Arias raises the following issues for our review.
A. Whether the [c]ourt erred in allowing the Commonwealth to
read into evidence the testimony of Rafael Santana Nunez
from the Preliminary Hearing in that the Commonwealth did
not establish that the witness was unavailable under Rule
804(a) and because [Arias] was not allowed to cross-examine
the witness on his credibility at the Preliminary Hearing?
B. Whether the [t]rial [c]ourt erred in allowing the testimony of
Dr. Gary Ross as to the location of the shooter at the time the
second bullet was fired in that said testimony was beyond the
scope of his expert forensic pathology report and outside his
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expertise as a physician in that said testimony involved
expert knowledge of bullet trajectories, velocities, calibers of
guns and types of bullets?
Appellant’s Brief at 4.
Arias first argues that the trial court erred in permitting the
Commonwealth to enter into evidence the preliminary hearing testimony of
witness Rafael Santana Nunez, whom the trial court had determined to be an
unavailable witness pursuant to Pa.R.E. 804(b)(1). We note that the
“[a]dmission of evidence is within the sound discretion of the trial court and
will be reversed only upon a showing that the trial court clearly abused its
discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.
2015) (citation omitted). “An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Ali, 112 A.3d 1210, 1217 (Pa. Super. 2015) (citation
omitted), appeal granted in part by, --- A.3d ----, 2015 WL 7763727 (Pa.
Dec. 2, 2015).
The Pennsylvania Rules of Evidence state that the following statements
are not excluded by the hearsay rule if the declarant is unavailable as a
witness.
Testimony given as a witness at another hearing of the same or
a different proceeding, or in a deposition taken in compliance
with law in the course of the same or another proceeding, if the
party against whom the testimony is now offered, or, in a civil
action or proceeding, a predecessor in interest, had an adequate
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opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
Pa.R.E., Rule 804(b)(1).
Instantly, our review of the record reveals that although the trial court
permitted the Commonwealth to read into evidence the witness’s preliminary
hearing testimony after Nunez failed to arrive in court to testify, Nunez
appeared willing to testify the following day. Although the Commonwealth
initially opposed calling Nunez as a witness, defense counsel moved to have
Nunez’s former testimony stricken from the record. See N.T., Trial, 8/12/14
at 530. The trial court ultimately granted the defense motion to strike the
preliminary hearing testimony from the record and instructed the jury to
disregard the portion of Nunez’s testimony that the Commonwealth read into
the record the previous day. See id. at 537, 541-542. Nunez then
proceeded to testify in person and was subject to cross-examination by
defense counsel. See id. at 543-573.
We find that Arias’s challenge to the introduction of Nunez’s
preliminary hearing was rendered moot when the trial court granted defense
counsel’s motion to strike the testimony from the record. Defense counsel
was afforded a full and fair opportunity to cross-examine the witness. We
further find that the trial court’s cautionary instruction to the jury to
disregard the former testimony sufficiently cured any potential prejudice that
may have arisen from the introduction of the preliminary hearing testimony.
See Commonwealth v. Miller, 819 A.2d 504, 513 (Pa. 2002) (“[T]he
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law presumes that the jury will follow the instructions of the court.”).
Accordingly, this claim is without merit.
Lastly, Arias contends that the trial court erred when it permitted
examining forensic physician, Dr. Ross, to offer an expert opinion as to the
location of the shooter at the time the second bullet was fired. See
Appellant’s Brief at 25.2 Arias does not cite any case law in support of his
proposition that Dr. Ross was unqualified to offer such an opinion.
Contrary to Arias’s assertion otherwise, we have long held that “[a]
physician who examines the gunshot wounds suffered by a decedent may
give his opinion regarding the direction and distance from which such
wounds were inflicted though that physician is not qualified as a ballistics
expert.” Commonwealth v. Guess, 416 A.2d 1094, 1096 (Pa. Super.
1979) (citing Commonwealth v. Gonzales, 345 A.2d 691 (Pa. 1975)).
Here, Dr. Ross was an expert in forensic pathology who conducted the
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2
Pa.R.E. 702 governs the permissibility of expert testimony.
If scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an
opinion or otherwise.
Pa.R.E. 702.
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autopsy of the victim. We therefore find the opinion offered by Dr. Ross
regarding the direction from which the second shot was fired was within his
area of expertise. See, e.g., Commonwealth v. Mollett, 5 A.3d 291, 305
(Pa. Super. 2010) (finding it was within former medical examiner’s area of
expertise to testify to position of decedent prior to being shot). Accordingly,
the admission of this testimony was not in error.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2016
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