Com. v. Otero-Velez, D.

J-S16016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANISHKA JAILEEN OTERO-VELEZ :
:
Appellant : No. 1279 MDA 2021
Appeal from the Judgment of Sentence Entered September 10, 2021,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0004032-2019.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 20, 2022
Danishka Jaileen Otero-Velez appeals from the judgment sentence
imposed after a jury convicted her of first-degree murder and related offenses.
Upon review, we affirm.
In its opinion, the trial court detailed the evidence in this case. We
summarize the facts relevant to this appeal as follows. Otero-Velez was in a
relationship with Ranciel Natera, the victim. At some time, Natera also had a
relationship with another woman. Afterwards, Otero-Velez and Natera learned
that the other woman was pregnant. A paternity test revealed that Natera
was the father.
On the evening of November 5, 2018, Otero-Velez and Natera were
discussing outside their apartment the fact that Natera had a baby with
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* Retired Senior Judge assigned to the Superior Court.
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another woman. Otero-Velez was very unhappy about it. The conversation
became very heated; they had been arguing about the paternity of the baby
for weeks. Otero-Velez pulled out a gun, pointed it at Natera, and shot him
in the chest. She then put the gun to Natera’s head and shot him again. The
shots were approximately two to three seconds apart.
Afterwards, Otero-Velez went to the apartment of her neighbors, Jason
Cruz and Velmarie Velez-Negron.1 Otero-Velez asked Cruz for help, for him
to take the gun, but he refused. She then asked for help to move Natera’s
body. Cruz refused, but Velez-Negron agreed. The two women went outside,
and Otero-Velez moved Natera’s body.
When the police arrived at the scene, the two women went back inside
the apartment. Once there, Otero-Velez pointed the gun at Cruz and
demanded that he not say anything. She told Cruz and Velez-Negron not to
tell the police she was Natera’s girlfriend and to call her by a different name.
Because they were afraid Otero-Velez might shoot Cruz or someone else, they
complied with her demands. Otero-Velez then took the gun apart and hid part
of it in her pants.
When the police came to the apartment, Otero-Velez told them her
name was Carmen and that she was visiting a friend there. Otero-Velez’ mom
and sister came to the apartment, and Otero-Velez gave her sister part of the
gun.
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1Cruz observed her argument with Natera earlier; Velez-Negron witnessed
her shoot Natera.
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While the police were investigating the scene, Cruz called Odaly Portes,
one of the property owners, and told him there was an emergency at the
apartment building. Portes arrived shortly thereafter with a business
associate, Manny Burgos.
Otero-Velez walked over to them. Portes and Burgos offered their
condolences to her, but she replied “F--- your condolences. I did it. I killed
him. He went off and had a baby, you know, with this chick.” Otero-Velez
said that she previously told Natera that if the results showed he was the
father, she would kill him. She also said that he lied about it and began to
explain when Portes stopped her and asked who witnessed the shooting. She
said Cruz and Velez-Negron and that she “could smoke [Cruz]” and “could
send some of [her] people.” Otero-Velez then told Portes she needed money
so she could get out of town. Fearful, Portes gave her $100. Otero-Velez said
that the police would know that she shot Natera because the gun was
registered to her. She told Portes he should tell Cruz not to say anything,
then left the scene.
During their investigation that night, the police found multiple bags in
Otero-Velez’ vehicle, including a laundry basket, travel bags, and trash bags.
They also found two purses; each had a live cartridge in it. When the police
searched Natera’s apartment, they found no woman’s belongings.
Subsequently, the police learned that Otero-Velez was Natera’s
girlfriend. They tried to locate her at various addresses but were unsuccessful.
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In fact, Otero-Velez had fled to Florida. On December 4, 2018, the police
arrested her.
On October 8, 2019, about a year after the shooting, a man who was
fishing at a state park in Schuylkill County caught Otero-Velez’ gun. He turned
it over the park ranger who contacted police.
Natera’s autopsy indicated that his death was caused by the shot to his
chest which was fired from about three feet away. The autopsy also indicated
that the gunshot wound to Natera’s head was the result of the gun being
placed directly against his head when it was fired.
On November 15, 2019, Otero-Velez was charged with first-degree
murder, third degree murder, two counts of aggravated assault, three counts
of intimidation of a witness, and three counts of terroristic threats.
On September 8, 2021, a jury convicted Otero-Velez of all charges
except one count of intimidation of a witness. The trial court sentenced her
to life in prison for the first-degree murder conviction; sentences for the other
convictions were imposed concurrently. Otero-Velez filed a post-sentence
motion, which the court denied.
Otero-Velez filed this timely appeal. Otero-Velez and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Otero-Velez raises a single issue:
1. Whether the Commonwealth failed to present sufficient
evidence to support the conviction on the charge of [m]urder of
the [f]irst degree as the Commonwealth failed to prove that
[Otero-Velez] acted intentionally and with premeditation to kill
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when she fired a gun during an argument with her boyfriend about
a paternity test result?
Otero-Velez’s Brief at 5.
Otero-Velez challenges the sufficiency of the evidence to convict her of
first-degree murder. In reviewing a sufficiency of the evidence claim, this
Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). However, “the inferences must flow from facts and circumstances
proven in the record and must be of such volume and quality as to overcome
the presumption of innocence and satisfy the jury of an accused's guilt beyond
a reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.
Super. 1991). “The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail even under
the limited scrutiny of appellate review.” Id. “Because evidentiary sufficiency
is a question of law, our standard of review is de novo and our scope of review
is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).
Specifically, Otero-Velez claims that the evidence in this case was
insufficient to prove beyond a reasonable doubt that she shot and killed Natera
intentionally and with premeditation. Although there was evidence that she
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was upset and fired a gun more than once, Otero Velez maintains there was
no evidence of a premeditated, intentional killing. Instead, Otero-Velez
maintains that she was emotional and angry over the situation. She claims
her actions were “visceral as opposed to intellectual, which establishes a lack
of premeditation necessary to sustain a conviction for first degree murder.”
Otero-Velez’ Brief at 10,13.
Murder in the first degree is an intentional killing. 18 Pa.C.S.A. §
2502(a). "To obtain a first-degree murder conviction, the Commonwealth
must demonstrate that a human being was unlawfully killed, the defendant
perpetrated the killing, and the defendant acted with malice and a specific
intent to kill." Commonwealth v. Kennedy, 959 A.2d 916, 921 (Pa. 2008).
"The element that distinguishes first-degree murder from all other degrees of
murder is the intent to kill, i.e., the presence of a willful, deliberate, and
premeditated killing." Commonwealth v. Ragan, 743 A.2d 390, 400 (Pa.
1999); see also 18 Pa.C.S.A. § 2502(d). "Specific intent may be proven
where the defendant knowingly applies deadly force to the person of another."
Commonwealth v. Sherwood, 982 A.2d 483, 493 (Pa. 2009). Likewise,
"circumstantial evidence[, by which the Commonwealth may prove specific
intent,] may consist of the accused’s use of a deadly weapon on a vital part
of the victim’s body.” Commonwealth v. Cox, 728 A.2d 923, 929 (Pa.
1999); Commonwealth v. Bryant, 67 A.3d 716, 721 (Pa. 2013). The
requisite period of reflection to establish premeditation for specific intent may
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be as brief as “a fraction of a second.” Commonwealth v. Rivera, 983 A.2d
1211, 1220 (Pa. 2009).
Here, the evidence showed that Otero-Velez shot Natera in vital parts
of his body. First, she shot Natera in the chest at close range, and then again,
directly in his head. The chest and head are considered “vital parts” of the
human body. Commonwealth v. Overby, 836 A.2d 20, 22 (Pa. 2003).
Additionally, the fact that Otero-Velez shot Natera more than once and that
she deliberately put the gun to his head indicates that she intended to kill him.
See id.Further, there is evidence of Otero-Velez’ premeditation before the
shooting took place. On several occasions prior to the murder, Otero-Velez
expressed her anger with Natera for having a child with another woman.
Otero-Velez admitted to Portes and Burgos that she killed Natera because of
this. Otero-Velez confessed to Burgos that she previously threatened Natera
that she would kill him if the paternity test results indicated he was the father.
When they learned that Natera was the father, Otero-Velez carried her threat
out and killed Natera.
Lastly, upon searching Otero-Velez’ car, the police found numerous bags
filled with clothes and various personal items. In Natera’s apartment, which
he shared with Otero-Velez, there was nothing that indicated a female had
been living there. From these facts, the jury could infer that she planned to
kill him and then escape afterwards.
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Viewing the testimony and evidence presented in the light most
favorable to the Commonwealth as the verdict winner, we conclude that the
Commonwealth presented sufficient evidence to establish that Otero-Velez
acted with premeditation and intentionally killed Natera. Her claim to the
contrary fails; her conviction for first-degree murder stands.
Judgment of sentence affirmed
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2022
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