Com. v. Ortiz, J.

J-A10018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSE ORTIZ
Appellant No. 2799 EDA 2015
Appeal from the Judgment of Sentence dated April 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012020-2009
CP-51-CR-0012023-2009
CP-51-CR-0012026-2009
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: Filed August 4, 2017
Appellant, Jose Ortiz, appeals from the judgment of sentence imposed
after the trial court convicted him of crimes relating to the homicides of
Roberto Beltran, Jose Ortiz,1 and Luis Rivera. The trial court found Appellant
guilty of three counts of first-degree murder and possessing an instrument
of crime (PIC) as to all three victims,2 and two counts of criminal conspiracy
and recklessly endangering another person (REAP) as to Beltran and Ortiz.3
We affirm.
The trial court detailed the factual background as follows:
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1
Appellant and this victim coincidentally share the same name.
2
18 Pa.C.S. §§ 2502, 907.
3
18 Pa.C.S. §§ 903, 2705.
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On October 23, 2008, at approximately 12:58 p.m.,
[Appellant] along with Raymond Ayala, shot and killed Jose Ortiz
and Roberto Beltran at the corner of North Mutter Street and
West Indiana Avenue. [Appellant] and Ayala were paid to kill
Ortiz by co-defendant Miguel Molina who ran an illicit drug
operation. There were a number of conversations between these
three men regarding the “elimination” of Ortiz, culminating in
the homicides on October 23, 2008. Shortly after the last
conversation with Molina, [Appellant], wielding a M-90 rifle, and
Ayala, a handgun, shot the decedents multiple times. Dr. Edwin
Lieberman performed autopsies on both decedents, and his
reports were admitted by stipulation. As to Mr. Ortiz, Dr.
Lieberman concluded that the cause of death was multiple
gunshot wounds, and that the manner of death was homicide.
Dr. Lieberman found that Ortiz suffered sixteen gunshots
wounds, including wounds to his head, neck, buttock, abdomen,
iliac crest, right thigh, left shoulder blade, and right chest. Dr.
Lieberman concluded that Mr. Beltran’s cause of death was
multiple gunshot wounds, and the manner of death was
homicide. He found that Beltran suffered nine gunshot wounds.
N.T. 04/01/15, pp. 114-214; N.T. 04/02/15, pp. 49-52.
When Sergeant James Keenan of the Philadelphia Police
Department arrived at the crime scene, he observed the two
men lying on the ground with medics attempting to resuscitate
one of them. After receiving information about the two shooters,
Sergeant Keenan and other officers started searching the
railroad tracks behind Indiana Avenue, but were unsuccessful in
apprehending the perpetrators. Sergeant Keenan then went to
the homicide unit to be interviewed by the detectives
investigating these crimes. N.T. 04/01/15, pp. 116, 124.
Police Officer Gregory Yatcilla of the Crime Scene Unit
responded to the crime scene to assist in the investigation.
Upon arrival, he along with other members of his unit, took
photographs and collected physical evidence, including fired
cartridge casings that were subsequently sent to the firearms
identification unit for comparison. Officer Yatcilla testified that
there were fifteen shell casings found at the scene. N.T.
04/01/15, pp. 141-142.
Both [Appellant] and Ayala were arrested on November 3,
2009 in the area of Jasper and East Lippencott Streets. N.T.
04/02/15, pp. 32-37.
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The key witness in the prosecution’s case was Alfredo
Hernandez, a former associate of Miguel Molina. Hernandez
testified that he was present when Molina directed [Appellant]
and co-defendant Ayala to “eliminate” Jose Ortiz. [Roberto
Beltran was not an intended target]. Hernandez saw [Appellant]
with a rifle, and Ayala with a handgun. He heard the shootings
and saw them go through a fence and back down the hill
towards the tracks from the area where the killings took place.
The witness testified that on October 24, 2008, he had a
conversation with [Appellant], wherein [Appellant] told him that
he killed the two victims on October 23, 2008. N.T. 04/01/15,
pp. 197-265.
The Commonwealth also introduced the testimony of Luis
Rodriguez, taken at the preliminary hearing, after a finding that
this witness was unavailable for trial. Rodriguez testified that, as
with Hernandez, he worked for Molina’s criminal drug operation.
In his testimony, Rodriguez stated that he was present when
Molina directed [Appellant] and Ayala to kill Jose Ortiz. He
further stated that he saw [Appellant] with a rifle and Ayala with
a handgun immediately before the killing of Jose Ortiz and
Roberto Beltran. Further, he stated that he heard the gunshots
and saw both men escape in a car driven by Molina after the
victims were gunned down. N.T. 09/22/09, pp. 126-130.
On October 24, 2008, [Appellant] shot and killed Luis
Rivera, at the corner of Howard and Tusculum Streets.
Hernandez also witnessed this murder. According to Hernandez,
[Appellant] chased Rivera down the street while shooting at him.
The shooting ended when Rivera dropped dead at the corner of
Howard and Tusculum Streets. His remains were taken for
autopsy by Dr. Samuel Gulino, whose report was admitted by
stipulation. Dr. Gulino determined that the cause of death was
multiple gunshot wounds, and that the manner of death was
homicide. He found that the victim suffered five gunshot
wounds, including wounds to his left shoulder, upper and middle
back, back of the torso, and right hand. N.T. 04/01/15, pp. 219-
220; N.T. 04/02/15, pp. 53-54.
At trial, Detective Brian Peters testified as to the
unavailability for trial of Luis Rodriguez. Detective Peters
testified to the man’s last known address, but that after an
extensive search, police authorities were unable to locate
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Rodriguez for trial. Furthermore, Rodriguez had himself been
shot six times on November 12, 2008 because he had attempted
to leave Molina’s illegal drug operation. He had been in a
relocation program for his safety, but left on his own accord. At
the preliminary hearing Rodriguez displayed the stitches
between his chest and abdomen received during medical
treatment for his gunshot wounds. N.T. 04/01/15, pp. 33-70.
In addition, Detective Joseph Centeno also testified about
his effort to locate Rodriguez, including a lead that the witness
was in Buffalo, New York. Lastly, Officer William Hunter, a
detective in the Philadelphia District Attorney’s office, searched
for Rodriguez in the witness’s neighborhood. He also scanned
local databases. Officer Hunter had previously brought both
Hernandez and Rodriguez to court for [Appellant’s] preliminary
hearing. Detective Timothy Bass, a homicide detective assigned
to the Fugitive Squad, also testified about his unsuccessful
efforts to locate Rodriguez. He searched the Pennsylvania Prison
System, the FBI federal inmate locator and the local hospitals.
He did not find Luis Rodriguez. N.T. 04/01/15, pp. 71-87, 88
102; N.T. 04/02/15, pp. 6-15.
Trial Court Opinion, 6/30/16, at 2-5 (footnotes omitted).
On April 2, 2015, the trial court rendered its verdicts and sentenced
Appellant to life in prison. Appellant filed a post-sentence motion which was
denied by operation of law, and thereafter filed this appeal.
Appellant presents three issues for our review:
1. Whether the verdict should be vacated as to the charges of
first-degree murder, and related offenses, for the murders of
Jose Ortiz and Roberto Beltran, because the Commonwealth
failed to prove each and every element of the crime charged
beyond a reasonable doubt;
2. Whether the verdict should be vacated as to the charge of
first-degree murder, and related offenses, for the murder of
Luis Rivera, because the Commonwealth failed to prove each
and every element of the crime charged beyond a reasonable
doubt;
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3. Whether the introduction into evidence of notes of testimony
absent live testimony from said witness was improper and
resulted in harm to Appellant.
Appellant’s Brief at 6.
In his first two issues, Appellant challenges the sufficiency of the
evidence. In his third issue, he claims that a specific portion of the evidence
– the preliminary hearing transcript of Luis Rodriguez’s testimony – was
improperly admitted. Because this third issue impacts Appellant’s sufficiency
issues,4 we address it first.
The Admission of Luis Rodriguez’s Preliminary Hearing Testimony
Appellant claims that the trial court erred in admitting the preliminary
hearing testimony of Luis Rodriguez. Appellant specifically asserts that the
trial court erred by finding that Mr. Rodriguez was unavailable at the time of
trial, and that by admitting the notes of Mr. Rodriguez’s testimony from the
preliminary hearing, Appellant was denied his constitutional rights to
confrontation and cross-examination. Appellant’s Brief at 15-18.
Our standard of review regarding admissibility of evidence is well-
settled:
“Questions regarding the admission of evidence are left to the
sound discretion of the trial court, and we, as an appellate court,
will not disturb the trial court’s rulings regarding the admissibility
of evidence absent an abuse of that discretion.” An abuse of
discretion is not merely an error of judgment; rather, discretion
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4
Appellant specifically avers that “Luis Rodriguez constituted 50% of the
substantive evidence against Appellant relative to [Ortiz] and Beltran[.]”
Appellant’s Brief at 18.
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is abused when “the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as shown by the evidence or
the record.” ...
Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014)
(citations omitted). However, to the extent that Appellant raises a
constitutional claim, such challenge raises a question of law, and our
standard of review over the trial court’s admission of the contested
testimony is de novo and our scope of review is plenary. Commonwealth
v. Mitchell, 152 A.3d 355, 358 (Pa. Super. 2016), citing Commonwealth
v. Yohe, 39 A.3d 381, 384 (Pa. Super. 2012).
Rule 804(b) of the Rules of Evidence provides an exception to the
hearsay rule for the admission of former testimony by an unavailable
witness:
The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or
lawful deposition, whether given during the current
proceeding or a different one; and
(B) is now offered against a party who had . . . an
opportunity and similar motive to develop it by direct,
cross-, or redirect examination.
Rule 804(a) describes those situations when a witness will be deemed
“unavailable” for purposes of Rule 804(b), including the following:
Criteria for Being Unavailable. A declarant is considered
to be unavailable as a witness if the declarant:
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...
(5) is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other
reasonable means, to procure:
(A) the declarant’s attendance, in the case of a
hearsay exception under Rule 804(b)(1) . . . .
But this paragraph (a) does not apply if the statement’s
proponent procured or wrongfully caused the declarant's
unavailability as a witness in order to prevent the declarant from
attending or testifying.
Appellant maintains that Rule 804(a)(5) was not met in this case
because “good-faith efforts were not used by the Commonwealth” and
“[v]ery little was done to find Luis Rodriguez” for trial. Appellant’s Brief at
16. Appellant claims “few efforts” were made by the Commonwealth and
says that such efforts “were initiated only two weeks prior to trial” and
improperly focused on Philadelphia when authorities knew he was not in
Philadelphia and more likely to be in Buffalo or Florida.5 Id. at 16-17. This
argument does not merit relief.
Where the Commonwealth seeks to admit a missing witness’s prior
recorded testimony, a “good faith” effort to locate the witness must be
established. Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975). “The
test for a witness’s unavailability is whether the prosecution has made a
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5
Appellant suggests that Detective Joseph Centeno, who was vacationing in
Florida and made some phone calls to locate Mr. Rodriguez “[b]etween
rounds of golf,” should have done more during his vacation in Florida to
“check out those contacts.” Appellant’s Brief at 16.
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good faith effort to produce the live testimony of the witness. The length to
which the prosecution must go to produce the testimony is a question of
reasonableness.” Commonwealth v. Melson, 637 A.2d 633, 638 (Pa.
Super. 1994) (emphasis in original, citations omitted), appeal denied, 647
A.2d 509 (Pa. 1994). The Supreme Court has stated that the
Commonwealth is not required to “establish that the witness has
disappeared from the face of the earth.” Commonwealth v. Blair, 331
A.2d 213, 215 (Pa. 1975). “It is within the discretion of the trial court to
determine what constitutes a good faith effort to locate a missing witness,
and the decision of the court will not be overturned absent an abuse of
discretion.” Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa. Super.
2002) (citations omitted).
Here, the trial court expressly concluded that “[t]he measures taken
by the Philadelphia Police Department and the Philadelphia District
Attorney’s Office . . . were . . . reasonable means to procure the witness’s
presence.” Trial Court Opinion, 6/30/16, at 10. Upon review, we find no
abuse of discretion by the trial court in determining Mr. Rodriguez’s
unavailability. In its recitation of the evidence, the trial court referenced
various efforts by the Commonwealth – as demonstrated by the actions of
Detective Peters, Detective Centeno, Officer Hunter, and Detective Bass – to
locate Mr. Rodriguez for trial. These included searches of Rodriguez’s
neighborhood in Philadelphia; scanning of various databases; pursuit of a
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lead in Buffalo; and searches in local hospitals and in the state prison
system and a listing of federal inmates. The trial court also noted that prior
to the preliminary hearing, Mr. Rodriguez had been shot six times for trying
to leave Mr. Molina’s drug operation, and although Mr. Rodriguez “had been
in a relocation program for his safety,” he “left of his own accord.” Trial
Court Opinion, 6/30/16, at 11-12. Given these facts, and the test of
reasonableness, the trial court did not abuse its discretion in finding Mr.
Rodriguez to be unavailable for trial and permitting the Commonwealth to
introduce his prior testimony.
Appellant additionally claims a constitutional violation of his rights
because he “did not have the full opportunity to cross-examine” Mr.
Rodriguez at the preliminary hearing and then was not able to cross-
examine Mr. Rodriguez at trial because of his unavailability. Appellant’s
Brief at 17. Appellant claims that he had “just met” his counsel at the
preliminary hearing, and counsel did not have time to prepare and was
unaware that Mr. Rodriguez had a criminal record. Id.6 These assertions
are not supported by the record.
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6
In support of this assertion, Appellant cites the statement at trial by
Samuel Stretton, Esquire, who represented Appellant’s co-defendant,
Raymond Ayala. Referencing Appellant’s counsel’s statements at the
preliminary hearing, Attorney Stretton stated, “Ms. McDermott . . . indicates
. . . we’re just seeing our clients.” N.T., 4/2/15, at 77. The record is
unclear as to when Attorney McDermott first met with Appellant. However,
as we discuss more fully below, Attorney McDermott stated that her
preparation was not an issue but expressed her concern about cross-
(Footnote Continued Next Page)
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We note:
Under both the Pennsylvania and United States Constitutions, a
criminal defendant has a right to confront and cross-examine the
witnesses against him. Commonwealth v. Bazemore, 531 Pa.
582, 614 A.2d 684, 685 (1992) (citing Commonwealth v.
McGrogan, 523 Pa. 614, 568 A.2d 924, 927 (1990)). It is well-
established, however, that the introduction of an unavailable
witness’s prior recorded testimony from a preliminary hearing is
admissible at trial and will not offend the right of confrontation,
provided the defendant had counsel and a full opportunity to
cross-examine that witness at the hearing. Commonwealth v.
Paddy, 569 Pa. 47, 800 A.2d 294, 312-13 (2002);
Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 417-18
(1999), cert. denied, 528 U.S. 1131, 120 S. Ct. 970, 145 L. Ed. 2d
841 (2000); Commonwealth v. Rizzo, 556 Pa. 10, 726 A.2d
378, 380 n. 2 (1999); Bazemore, 614 A.2d at 687;
Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603, 605
(1986); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d
1051, 1054 (1977); Commonwealth v. Johnson, 758 A.2d
166, 169 (Pa. Super. 2000).
Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa. 2003). The
Commonwealth may not be deprived of its ability to present inculpatory
evidence at trial merely because the defendant, despite having the
opportunity to do so, did not cross-examine the witness at the preliminary
hearing stage as extensively as he might have done at trial.
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 542 (Pa. Super. 1995)
(citation omitted). We have explained:
The decisions of our Courts are clear that the admissibility of
former testimony and its ability to withstand Confrontation
Clause challenges derives not from the actual conduct or content
_______________________
(Footnote Continued)
examination of the Commonwealth’s witnesses and communicating with
Appellant about the cross-examination because both the witnesses and
Appellant spoke Spanish as their first language. See infra at 11-14.
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of cross-examination, but from its availability. See
Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883, 904
(2010). Indeed, no less an authority than the United States
Supreme Court has validated this limitation on application of the
Confrontation Clause. That Court has held and reaffirmed that
“there may be some justification for holding that the opportunity
for cross-examination of a witness [at] a preliminary hearing
satisfies the demands of the confrontation clause where the
witness is shown to be actually unavailable....” California v.
Green, 399 U.S. 149, 165–66, 90 S. Ct. 1930, 26 L. Ed. 2d 489
(quoting Barber v. Page, 390 U.S. 719, 725–726, 88 S. Ct.
1318, 20 L. Ed. 2d 255 (1968)). Consistent with such
pronouncements, the Supreme Court of Pennsylvania has
recognized as well that the opportunity to cross-examine a
witness, rather than its actual occurrence, fulfills the
constitutional right of confrontation:
Where the defendant has had the opportunity to cross-
examine a witness at a preliminary hearing, probing into
areas such as bias and testing the veracity of the
testimony, cross-examination, and thus confrontation,
within the meaning of the Sixth Amendment has been
accomplished. This is particularly so in cases where, as
here, the defendant was represented by the same counsel
at the preliminary hearing and at trial.
Wholaver, 605 Pa. 325, 989 A.2d 883, 904 (2010).
Commonwealth v. Stays, 70 A.3d 1256, 1265 (Pa. Super. 2013).
Our review reveals that although Appellant had different counsel at the
preliminary hearing and trial,7 his confrontation rights were not violated.
Three witnesses testified at the preliminary hearing: Philadelphia Homicide
Detective Jack Cummings, Alfredo Hernandez, and Luis Rodriguez. Prior to
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7
Appellant was represented by Barbara Ann McDermott, Esquire at the
preliminary hearing and Regina M. Coyne, Esquire at trial and in this appeal.
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the witnesses’ testimony, and relative to cross-examination, the following
exchange was initiated by Appellant’s counsel, Attorney Barbara McDermott:
Attorney McDermott: I don’t have the witnesses’
statements or statement, so without the witness statement, it’s
going to be hard to cross-examine, so I may need time after the
witness is done with the direct to at least communicate with my
client for my questions on cross. I can talk to my client now but
I need the statement.
Assistant District Attorney: If I may, I am going to
give the statements to counsel, not because she needs it for
cross-examination, but I intend to preserve the testimony
because her client attempted to kill a witness, so I will preserve
it just in case.
Attorney McDermott: So the record is clear, judge, the
only way that testimony can be preserved is if defense counsel
has an adequate and meaningful opportunity to cross-examine.
My position is, I can’t have that opportunity unless I have
the opportunity to communicate with my client.
I do not represent my client in any other cases which he
has –
The Court: If you feel the need to talk to your client
during the hearing, we can ask the interpreter to come over. I
don’t know what else to do. The Court is providing the
interpreter. Unfortunately, the witness needs the interpreter as
well.
Attorney Stretton8: We are willing to work with you, but
that’s a good point as well as – the right of counsel does infringe
on that, and this hearing, this testimony of these witnesses
cannot be used at a later time without the individual interpreters
sitting there to go back and forth.
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8
As previously noted, Attorney Stretton represented Appellant’s co-
defendant Raymond E. Ayala.
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The Court: That’s for [the Assistant District Attorney] and
a later judge to figure out if there’s a problem.
Attorney Stretton: I just want to make the record clear
that that’s a problem here, and the lack of funds cannot
undermine due process.
Assistant District Attorney: Since 2008, these
attorneys—
Attorney Stretton: Well –
Assistant District Attorney: Your Honor, these cases
have been listed since 2008. The reason for the length of time
was to coordinate having all of the attorneys present. I finally
have them present today. From 2008 to the present day,
counsel could have at any point spoken to their clients regarding
the incident.
Attorney Stretton: How, without an interpreter? They
don’t give that at the prison. I couldn’t pay investigators.
There’s no money. They stopped paying in March and April.
Attorney McDermott: I don’t want to belabor it. The
issue is not in terms of preparation. I have been ready
always. The Commonwealth was not ready at several listings.
The Court: The bottom line is we have one interpreter;
that’s it. There’s nothing I can do about it. We’ll do what we
can. If you feel the need to talk to your client in the middle of
the hearing, we’ll have the interpreter help you out. There’s
nothing I can do.
Attorney McDermott: Can I have the record reflect,
while it’s true my client was charged, the Commonwealth sealed
the identity of the witnesses, and it is right now that I am finding
out the identity of Alfredo Hernandez and was given his
statements.
Assistant District Attorney: For the record, speaking to
the witnesses, all these defendants do speak English. They are
more fluent in Spanish, but they are all fluently bilingual.
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In addition, counsel is aware this witness was shot by Ms.
McDermott’s client.
Attorney McDermott: Again, I don’t represent him on
that case. I have no information about that case.
The Court: All right. Again, this is just representations of
counsel on the record. You made your record.
N.T., 9/22/09, at 4-8 (emphasis added).
The hearing proceeded with the respective testimonies of Detective
Cummings, Alfredo Hernandez, and Luis Rodriguez. At the outset of Mr.
Rodriguez’s testimony, the Assistant District Attorney advised, “Sir, you
have an interpreter, and I know you speak English also, but you must
answer everything in Spanish.” Id. at 122-123. Occasionally, Mr. Rodriguez
responded in English. Id. at 127-128, 130, 146, 150, 151. The trial court
stated “Mr. Rodriguez, you have to – I don’t know if you can interpret it. He
seems to understand English.” Id. at 28. On cross-examination, counsel for
co-defendant Miguel Molina admonished Mr. Rodriguez to “Let [the
interpreter] interpret first” and “[w]ait for the interpreter” before
responding. Id. at 144, 147. Attorney McDermott then cross-examined Mr.
Rodriguez. Id. at 150-154. At the end of her questioning, Attorney
McDermott asked, “Can I have the interpreter for a second, Your Honor?”
Id. at 154. The trial court said “sure” and the record reflects that Attorney
McDermott and Appellant “confer[red] off the record.” Id. at 154-155.
After conferring with Appellant, Attorney McDermott advised that she had
“[n]o further questions.” Id. at 155. Given this record, we find that
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Appellant’s counsel – who stated that “preparation was not the issue” and
communicated with Appellant during cross-examination and with the benefit
of an interpreter – had a full and fair opportunity to cross-examine Mr.
Rodriguez. Accordingly, Appellant’s constitutional right to confrontation was
not violated. Bazemore, 614 A.2d at 685.
Sufficiency
In his remaining issues, Appellant contests the sufficiency of the
evidence presented at trial.
In reviewing a sufficiency of the evidence claim, our standard of
review is well settled. We must determine whether the evidence
admitted at trial, and all reasonable inferences drawn therefrom,
when viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super.
2009). Where there is sufficient evidence to enable the trier of
fact to find every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the evidence claim
must fail. Id.
Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010), appeal
denied, 14 A.3d 826 (Pa. 2011).
In his second issue, Appellant claims the evidence was insufficient to
sustain his convictions relative to the victims Jose Ortiz and Roberto Beltran
because “there was no eyewitness testimony” and “the Commonwealth’s
entire case rests upon the live testimony of a drug dealer and user, and the
preliminary hearing testimony notes from another member of the Molina
drug organization.” Appellant’s Brief at 12-13. Appellant further asserts
that “to find guilt based upon the testimonies of Hernandez and Rodriguez is
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akin to guessing what actually occurred” and, “[i]f all that is required of the
Commonwealth to obtain a guilty verdict is for drug sellers to point the
finger at someone, then sufficiency of the evidence has no meaning, and
anyone is at risk to be confined for life on such defective evidence.” Id.
Appellant continues with this logic in his third issue, in which he assails
the sufficiency of the evidence supporting his convictions relating to the
victim Luis Rivera, although he fails to discuss the elements of the crimes of
which he was convicted and focuses on the “the uncorroborated testimony of
Hernandez.” Appellant’s Brief at 14. Appellant also references the
testimony of Officer Hunter – “the only eyewitness testimony of someone
who could not possibly have been involved in the murder” – noting that the
officer heard gunshots but did not see Appellant at the scene.9 Id.
Appellant’s claims are meritless. It is well established that:
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. [Commonwealth v.
Sibley, 972 A.2d 1218 (Pa. Super. 2009).] It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. Commonwealth v.
Jones, 954 A.2d 1194 (Pa. Super. 2008). The Commonwealth's
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9
To the extent Appellant assails witness reliability, his challenge is to the
weight and not the sufficiency of the evidence and is unavailing.
Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (“Directed
entirely to the credibility of the Commonwealth’s chief witness, Appellant’s
claim challenges the weight, not the sufficiency, of the evidence . . . Even if
Appellant had preserved his weight claim, he would gain no relief. The
weight of the evidence is exclusively for the finder of fact, which is free to
believe all, part, or none of the evidence, and to assess the credibility of the
witnesses”).
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burden may be met by wholly circumstantial evidence and “any
doubt about the defendant’s guilt is to be resolved by the fact
finder 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.” Commonwealth v. Sinnott, 976
A.2d 1184, 1187 (Pa. Super. 2009).
Mollett, 5 A.3d at 313.
In addition to detailing the evidence adduced at trial, the trial court,
sitting as the finder of fact, discussed the statutory elements of first-degree
murder, PIC, criminal conspiracy, and REAP, and also discussed prevailing
case law as it pertains to these crimes and the sufficiency of the evidence.
Further, the trial court explained the factual basis and rationale for the
convictions, including witness accounts of Appellant and his possession of a
firearm, and medical examiner testimony regarding the multiple gunshot
wounds suffered by the three victims. Trial Court Opinion, 6/30/16, at 5-9.
Accordingly, in disposing of Appellant’s sufficiency issues, we incorporate
and adopt the trial court’s analysis. See id.
In sum, and for the reasons discussed above, we find no merit to
Appellant’s evidentiary claims and affirm Appellant’s judgment of sentence.
The parties shall attach a copy of the trial court’s June 30, 2016 opinion to
any future filings relating to the merits of this appeal.
Judgment of sentence affirmed.
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J-A10018-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
- 18 -
Circulated 07/12/2017 03:56 PM