Com. v. Diaz-Ayala, H.

J-S07028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
HENRY DIAZ-AYALA :
:
Appellant : No. 1223 EDA 2022
Appeal from the Judgment of Sentence Entered December 16, 2021,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No(s): CP-46-CR-0001882-2019.
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 4, 2023
After a jury convicted him of felony murder, criminal conspiracy, and
related offenses,1 Henry Diaz-Ayala appeals from the judgment of sentence of
incarceration for life without the possibility of parole. We affirm.
Around 9:10 p.m. on January 23, 2019, Diaz-Ayala, Justin Mitchell, and
Russel Montalvo-Fernandez broke into the home of David Pass and his father,
Ralph Williams. Carrying guns, the men intended to rob Mr. Pass “of money
he owed to Mitchell, who in turn owed it to [Diaz-Ayala] and Montalvo[-
Fernandez].” Trial Court Opinion, 6/24/22, at 4.
While Montalvo-Fernandez and Mr. Pass were on the third floor, Diaz-
Ayala was with Mr. Williams in his second-floor bedroom. Mr. Williams resisted
and stabbed Diaz-Ayala, who screamed. Upon hearing Diaz-Ayala’s scream,
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1See 18 Pa.C.S.A. §§ 903(a)(1), 907(a), 2505(b), 2702(a)(1), 3701(a)(1)(i),
3701(a)(ii), and 3701(a)(1)(iv).
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Montalvo-Fernandez shot Mr. Pass in the leg and buttocks. Montalvo-
Fernandez ran downstairs, where he repeatedly shot and killed Mr. Williams.
The three home invaders fled the scene. Diaz-Ayala left a trail of blood
from Mr. Williams’ bedroom, down the stairs, through the kitchen, out the
back door, and into the street. Montalvo-Fenandez drove Mitchell home and
then took Diaz-Ayala to a hospital.
Several months passed, and police eventually apprehended Diaz-Ayala
and Mitchell. Meanwhile, Montalvo-Fernandez escaped to Mexico with the help
of his close friend, Elijah Moody.
The Commonwealth chose to try Diaz-Ayala and Mitchell together. Diaz-
Ayala moved to sever his and Mitchell’s trials. Diaz-Ayala argued a joint trial
would prejudice him, because the codefendants had conflicting theories of
what occurred on the night of the home invasion. Also, the Commonwealth
intended to admit Mitchell’s grand-jury testimony against Mitchell, and Diaz-
Ayala feared that testimony would incriminate him without an opportunity to
cross-examine Mitchell. The trial court denied severance.
Also, the Commonwealth filed a motion in limine to admit the testimony
of Elijah Moody regarding statements Montalvo-Fernandez made to him in the
days after the homicide. The trial court granted the Commonwealth’s motion
and explained its ruling from the bench as follows:
It’s important to note that Moody and Montalvo[-
Fernandez] were friends prior to the homicide. It’s also
important to note that, at the time these statements were
made, [none] of the defendants had been arrested for
homicide. The case law does say that the conspiracy ends
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upon arrest. We don’t have that in this particular situation.
We know that Mr. Moody testified before the Investigating
Grand Jury on two occasions, that being September 3, 2019
and . . . July 24, 2019.
On August 7, 2019, he and his attorney met with
Detective Mitchell, and I’ll quote, “to clarify false information
that he previously testified to before the Investigating Grand
Jury.” There was no question-and-answer statement taken
at the time, and it is not clear from the record why no formal
statement was taken. It’s also not clear what generated this
meeting on August 7th. Was Mr. Moody being threatened
with contempt of court for lying to the grand jury? It’s just
not clear. But a police report was generated, and it says
various things that Montalvo[-Fernandez] is reported to
have said to Moody.
At some point, . . . Mr. Moody came to Detective
Mitchell, and he did give a Q-and-A statement. I believe it
was two pages and basically adopted a police report. That
was March 12, 2020.
So, what we have here is knowing the facts of this
case, we know that the three people came together. After
the homicide, they left in a car together. Two of them were
wearing masks during the crime. We know that there was
cell phone contact between them, after the time and prior
to their arrest. I think it can be readily inferred that there
was an agreement, as part of the original plan, to get away
with the crime, to cover up, to evade capture, and I think
that can be readily inferred as part of the plan. So, I find
that the conspiracy did not end. The statements were made
in furtherance of the conspiracy, and they are admissible.
N.T., 7/15/21, at 18-19.
The matter proceeded to trial. The jury convicted both men, and the
trial court sentenced Diaz-Ayala as described above. This timely appeal
followed.
Diaz-Ayala raises three appellate issues:
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1. Whether the trial court erred and abused its discretion
in denying [Diaz-Ayala’s] pretrial motion to sever?
2. Whether the trial court erred and abused its discretion
in permitting hearsay evidence at trial . . . ?
3. Whether the trial court erred and abused its discretion
in giving a confusing progression charge to the jury,
which led to an inconsistent verdict?
Diaz-Ayala’s Brief at 5. We address each issue in turn.
1. Motion to Sever Codefendants’ Trials
First, Diaz-Ayala challenges the trial court’s denial of his motion to sever
his trial from that of his codefendant, Mitchell.
At the outset of his brief, Diaz-Ayala correctly acknowledges that “The
decision whether to sever trials of codefendants is one within the sound
discretion of the trial court and will not be disturbed absent a manifest abuse
of discretion.” Id. at 2 (citing Commonwealth v. Morales, 494 A.2d 367,
372 (Pa. 1985)). Further, Diaz-Ayala correctly defines an abuse of discretion
as “[n]ot merely an error of judgment, an abuse of discretion occurs when
[(1)] the law is overridden or misapplied; [(2)] or the judgment exercised is
manifestly unreasonable; or [(3) the decision is] the result of partially,
prejudice, bias, or ill-will, as shown by the evidence of record.” Id. (citing
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)). In addition, he
correctly reiterates our standard of review in the argument portion of his brief.
See id. at 19.
However, Diaz-Ayala never indicates which type of abuse of discretion
the trial court supposedly committed. Rather than identify the alleged abuse
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of discretion, Diaz-Ayala argues why the trial court should have severed his
and Mitchell’s trials, as if our standard of review were de novo.
He asserts he “established during pretrial hearings that the antagonistic
defenses would cause him prejudice at a joint trial.” Id. at 20. Diaz-Ayala
then relitigates his arguments from below, instead of explaining how the trial
court’s reasoning was manifestly unreasonable, what law the court overrode,
or how its decision arose from bias or prejudice against him.
Moreover, Diaz-Ayala suggests that the “scales of justice should have
tipped toward protecting [his] right to be tried separately due to the strong
antagonistic defenses.” Id. at 21 (emphasis added). He contends that,
because he “showed that he would be prejudiced by a joint trial, and in fact
prejudice resulted, the trial court should have ordered separate trials for the
defendants.” Id. (emphasis added).
When reviewing for an abuse of discretion, we do not ask how the scales
of justice should tip or reconsider how a given judicial officer should exercise
discretion, as if we were sitting in the place of the trial court. Even if we
disagree with a trial court’s judgment on the severing of codefendants’ trials,
Pennsylvania courts have long held that an “abuse of discretion is not merely
an error of judgment, but rather a misapplication of the law or an
unreasonable exercise of judgment.” Johnson v. Johnson, 222 A.3d 787,
789 (Pa. Super. 2019). Thus, it is insufficient to convince us that “the lower
tribunal reached a decision contrary to the decision that the appellate court
would have reached.” B.B. v. Dep't of Pub. Welfare, 118 A.3d 482, 485
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(Pa. Cmwlth. 2015) (some punctuation omitted). Instead, an appellant must
persuade this Court that one of the three abuses of discretion occurred. See
Montalvo, surpa.
Here, Diaz-Ayala disregards our deferential standard of review for
orders denying motions to sever codefendants’ trials. He does not argue –
much less convince this Court – that the trial court’s analysis and decision
were manifestly unreasonable or that they overrode or misapplied the law.
Nor does Diaz-Ayala argue that the trial court’s determinations were the result
of bias, prejudice, or ill-will. Hence, his appellate argument does not persuade
us that the trial court abused its discretion.
Diaz-Ayala’s first issue entitles him to no relief.
2. Hearsay Statements of Conspirators
As his next issue, Diaz-Ayala contends the “trial court erred and abused
its discretion in permitting hearsay testimony at trial over [his] objections.”
Diaz-Ayala’s Brief at 22. He challenges two subcategories of hearsay: (1) the
grand-jury testimony of Mitchell and (2) the statements that Montalvo-
Fernandez made to Mr. Moody in the days following the murder.
Regarding Mitchell’s grand-jury testimony, Diaz-Ayala argues that the
admission of that testimonial evidence violated the Sixth Amendment to the
Constitution of the United States.2 The Commonwealth replies that Diaz-Ayala
waived this sub-issue. See Commonwealth’s Brief at 19-20. We agree.
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2 The Sixth Amendment mandates that criminal defendants “shall enjoy the
right . . . to be confronted with the witnesses against him . . . .”
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Waiver presents “a question of law, over which our standard of review
is de novo, and our scope of review is plenary.” Commonwealth v. Barbour,
189 A.3d 944, 954 (Pa. 2018).
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Indeed, “issues, even those
of constitutional dimension, are waived if not raised in the trial court. A new
and different theory of relief may not be successfully advanced for the first
time on appeal.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884
(Pa. Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019).
When the Commonwealth began to ask one of its witnesses about the
testimony that Mitchell provided before the grand jury, counsel for Diaz-Ayala
requested a sidebar. There, his attorney did not object to the admission of
Mitchell’s grand-jury testimony. Defense counsel said, “I’d ask the court to
give a cautionary instruction that anything [Mitchell said] in front of the grand
jury or in front of the [investigating] detective cannot be used in any way
against my client.” N.T., 12/15/21, at 57.
The trial court granted the requested relief. The court instructed the
jury as follows: “you may hear statements made by Mr. Mitchell. Anything
you hear regarding what Mr. Mitchell allegedly said cannot be used against
Mr. Diaz-Ayala.” Id. at 58.
Thus, Diaz-Ayala made no objection to the admission of Mitchell’s grand-
jury testimony. In fact, he received the relief that he requested at sidebar.
Simply put, Diaz-Ayala did not assert that Mitchell’s grand-jury testimony
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violated his confrontation-clause rights at the trial. Hence, he raises this
constitutional theory for the first time on appeal. Under Pa.R.A.P. 302(a), we
dismiss Diaz-Ayala’s constitutional theory as waived.
Turning to his second sub-issue (i.e., Montalvo-Fernandez’s hearsay to
Mr. Moody) Diaz-Ayala recognizes that our standard of review for evidentiary
issues is an abuse of discretion. See Diaz-Ayala’s Brief at 2 (citing Montalvo,
986 A.2d at 94). However, similar to his first appellate argument, he does
not state which of the three types of abuse of discretion he believes the trial
court committed. Instead, he argues that the trial court’s decision to admit
Montalvo-Fernandez’s hearsay statements “was erroneous, because . . . that
trial court failed to analyze whether [the statements] were made to further
the common design of the conspiracy.” Id. at 27.
First, this is inaccurate. The trial court performed the analysis that Diaz-
Ayala claims it did not. The court clearly stated that:
it can be readily inferred that there was an agreement, as
part of the original plan, to get away with the crime, to cover
up, to evade capture, and I think that can be readily inferred
as part of the plan . . . The statements were made in
furtherance of the conspiracy, and they are admissible.
N.T., 7/15/21, at 19 (emphasis added).
Second, as mentioned, an “abuse of discretion is not merely an error of
judgment, but rather a misapplication of the law or an unreasonable
exercise of judgment.” Johnson, 222 A.3d at 789 (emphasis added). Diaz-
Ayala does not claim that either occurred when the trial court granted the
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Commonwealth’s motion in limine to admit Montalvo-Fernandez’s statements
to Mr. Moody. Thus, he fails to persuade us that such an abuse occurred.
Diaz-Ayala’s second issue is partially waived and partially meritless.
3. The Jury Charge
Lastly, Diaz-Ayala asserts the trial court “erred and abused its discretion
in giving a confusing progression charge to the jury which resulted in an
inconsistent verdict.” Diaz-Ayala’s Brief at 29. He believes the charge on the
progressive degrees of murder “confused the jury and led to inconsistent
verdicts of guilty of [murder of the] second degree and not guilty of [murder
of the] third degree.” Id.
The record reveals that Diaz-Ayala requested the progressive charge on
murder. His counsel said to the trial court, “I am not asking for a progressive
charge on anything other than the homicide.” N.T., 12/16/21, at 11
(emphasis added). Also, Diaz-Ayala did not object to the charge after it the
trial court gave it. See id. at 231.
As such, he did not preserve this issue for our review. Under Pa.R.A.P.
302(a), we dismiss Diaz-Ayala’s final appellate issue as waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2023
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