COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Ortiz and Chaney UNPUBLISHED
Argued at Norfolk, Virginia
ABDIEL QUINONES BERRIOS MEMORANDUM OPINION* BY v. Record No. 0915-23-1 JUDGE DANIEL E. ORTIZ AUGUST 13, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Tanya Bullock, Judge
Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Robert D. Bauer, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Abdiel Quinones Berrios appeals his convictions, following a jury trial, for second-degree
murder and use of a firearm in the commission of a felony, in violation of Code §§ 18.2-32
and -53.1.1 On appeal, Quinones Berrios argues that the trial court violated his right to present a
complete defense when it excluded body-worn-camera footage containing hearsay statements. He
further asserts that the trial court erred in denying his motion to strike the convictions because the
evidence was insufficient to prove that he was the person who committed the crimes. Finding that
the exclusion of hearsay statements did not violate Quinones Berrios’s due process rights and that
the jury’s conclusion that Quinones Berrios was the perpetrator is not plainly wrong, we affirm the
convictions.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 At trial, the appellant stated that his last name was Quinones. In the briefs, the appellant refers to himself as Quinones but the Commonwealth refers to the appellant as Berrios. To reduce confusion, this opinion will refer to the appellant as Quinones Berrios. BACKGROUND
“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.
Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v.
Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26
Va. App. 335, 348 (1998)).
I. Friends Meet for Late-Night Get-Together
Shortly after midnight on June 11, 2021, Evania Valle drove with her fiancé Emmanuel
Rivera in their silver sedan to the Military Highway Walmart in Virginia Beach to meet
Quinones Berrios, Daniel Vasquez, and Luis.2 Rivera was wearing his black fanny pack around
his waist. Quinones Berrios arrived in a black BMW with Luis, and Vasquez arrived in his
Nissan Rogue soon after.
Quinones Berrios, Rivera, Vasquez, and Luis were friends and colleagues. According to
Vasquez, Rivera was going to surrender to the police later that day to serve a seven-day jail
sentence, and he wanted to see his friends before he was incarcerated.3
Walmart surveillance camera footage from that morning shows three men congregating
around a silver car. Valle identified the vehicle as Rivera’s and the three men as Rivera,
Quinones Berrios, and Luis. Rivera wore light-colored jeans, a black t-shirt, and a black baseball
hat; Quinones Berrios wore a black shirt with white on the sleeve; and Luis was the relatively
2 Luis’s surname was never disclosed at trial, and he was referred to as “Minol” by other witnesses.
Vasquez, who testified to many of the night’s events, admitted at trial that he had 3
numerous felony convictions. -2- shorter man in a black shirt with white lettering on his chest. From the surveillance video,
Vasquez identified as his own the SUV that arrived later and stopped just behind the men. Valle
identified herself as the light-haired woman who exited the silver sedan and talked with Vasquez
shortly after he arrived.
Before the group left Walmart, Rivera handed a backpack, which contained a tan
.45-caliber firearm, to Quinones Berrios. Vasquez explained at trial that Rivera often gave
Quinones Berrios the gun because Quinones Berrios had a driver’s license and therefore would
be less likely to be subject to a search of his car if he were pulled over.
After a few minutes, the men got into Vasquez’s Nissan and drove off. Valle drove to a
nearby Wendy’s for something to eat. Vasquez then drove the men around while they all
smoked marijuana. Rivera and Quinones Berrios may have used heroin during this time.
Vasquez admitted at trial that both Rivera and Quinones Berrios sometimes sold drugs.
About thirty minutes later, Rivera called Valle and had her return and meet him at the
Walmart. From the Walmart, Rivera and Valle drove together to a nearby 7-Eleven; Quinones
Berrios and Luis drove in the black BMW together, and Vasquez drove separately in his car. At
7-Eleven, Rivera bought cigarettes, food, and gas for everyone in the group. The group planned
to continue their revelry at Rivera and Valle’s apartment, in the Linkhorn Bay Apartments
complex on Fountain Lake Drive in Virginia Beach. While the caravan continued to Rivera and
Valle’s home, Vasquez drove to his home in Chesapeake.
II. Rivera is Shot and Killed
When Rivera and Valle arrived at their apartment complex, they parked in their assigned
parking spot; Quinones Berrios and Luis parked on the street behind the parking lot. As Valle
was gathering her bag in the car, a person approached Rivera from behind while he was still in
the driver’s seat. The person said, “Because you f***ed with us” in Spanish, and simultaneously
-3- shot Rivera. Valle could see only the shooter’s chest from her vantage point. Valle testified that
the shooter wore a black shirt and could not recall if it had any lettering or design. Valle noted
that the assailant had a Puerto Rican accent. Valle attested that she knew the accent was Puerto
Rican because she was Puerto Rican.
Rivera got out of the car, looked at the shooter, and said, “What happened?” Shocked,
Valle remained in the car for several moments before running away. When Valle was two car
lengths away, she looked back toward Rivera and the shooter. Valle noted that the shooter was
tall and skinny and, in addition to a black shirt, wore a black baseball hat and a black neck gaiter
that had some color in it. When the shooter pointed the gun at Valle, she continued to flee. As
she ran, Valle heard another gunshot. Valle looked back at the scene a final time and observed
the shooter searching the passenger side of the vehicle. As Valle raced around the apartment
building, she saw an open window and asked the person inside for help. Her neighbor allowed
her to climb through the window, and someone in the apartment called 911.
At the time, Mark Millirons lived in a first-floor apartment at Linkhorn Bay Apartments
with views of the complex parking lot. Around 1:00 a.m., Millirons heard “a loud pop” outside
his home. After hearing that sound, Millirons looked out his bedroom window and saw a car
parked in the first parking spot with its lights on and doors open. Two men were outside the
vehicle about ten feet away from each other. One of the men was holding a pistol. The armed
man was tall and skinny and wore “[d]ark clothes—black with white lettering going down the
sleeves.” Millirons noted that from his vantage point he saw the assailant’s left arm. The men
appeared to be arguing but Millirons could not discern what they were saying.
Millirons watched as the unarmed man, with his hands in the air, backpedaled across the
parking lot and toward a silver truck. The assailant followed and shot the unarmed man. The
unarmed man leaned against a truck, “went down to his knees[,] and . . . started crawling away.”
-4- The shooter continued to approach his victim, stood over him, and shot him again. After the
final gunshot, Millirons observed the shooter leave toward Old Virginia Beach Road. While
talking to a 911 dispatcher, Millirons heard tires spin and saw a speeding car turn right on Old
Virginia Beach Road.4
Lara Hamze also lived at the Linkhorn Bay Apartments in the summer of 2021. She
woke to the sound of a gunshot sometime after 12:30 a.m. At first, she was unsure what woke
her. When Hamze heard a second gunshot, she looked out her third-story bedroom window and
saw two men in the middle of the apartment-complex parking lot. One of the men was armed
with a pistol while the second man retreated. According to Hamze, the second man had nothing
in his hands. The armed man looked to be between 5’8” and 5’10” tall and wore black
sweatpants, a black long-sleeved shirt with a white stripe from the shoulder down the left sleeve,
and a black baseball hat. The armed man pushed the unarmed man to the ground and shot him
from three or four feet away. The shooter then ran across the parking lot toward Old Virginia
Beach Road.
Hamze noted that a third person was by the driver’s side of a silver sedan that the shooter
and victim had moved away from. This third person was about six feet tall, light skinned, and
wore a short black short-sleeved shirt, baseball cap, and jeans. Hamze could not remember how
the third person left the scene. While the shooter fled, Hamze called 911.5 In her 911 call,
Hamze noted that the doors to the silver sedan had been open during the incident but that when
the police arrived the doors were closed.
Nicholas Chick lived 300 feet from Fountain Lake Drive. From his condominium on
Polo Court, Chick could see the Linkhorn Bay Apartments and the complex’s parking lot.
4 Millirons’s 911 call was played for the jury. 5 Hamze’s 911 call was played for the jury. -5- Around midnight, Chick heard a noise that drew his attention. He opened his door and saw a
man in the parking lot stumble toward a vehicle before collapsing. Chick noted that the man
appeared to limp as if he had already been hurt. A second man wearing a long-sleeved
sweatshirt approached the collapsed man and shot him at close range. The shooter then
rummaged through a vehicle before he ran toward Old Virginia Beach Road. Chick called 911
and followed the shooter.6
From Old Virginia Beach Road the shooter traveled on foot east on North Birdneck Road
toward the intersection of Waterfront Drive and Marabou Lane. As the shooter approached the
intersection, several police cruisers surrounded him. Thereafter, Chick lost sight of the shooter.
In Chick’s 911 call, he described the shooter as a black man. At trial, Chick asserted that
was inaccurate and that he could not tell the shooter’s race because it was dark. Chick also
acknowledged that he is colorblind.
III. Officers Pursue and Detain the Suspected Shooter, and Investigate Rivera’s Death
At about 1:00 a.m., dozens of officers were dispatched to a reported shooting at 511
Fountain Lake Drive in Virginia Beach. The suspect was reported to be wearing a black hoodie
with white lettering and had last been seen on North Birdneck Road. While driving at the 500
block of North Birdneck Road, Officer Gavin Christiana noticed a slim, light-skinned male,
about 5’10” to 6’0” tall, wearing black pants, a black hat, and a black long-sleeved shirt with a
white stripe on the arm. After dispatch again described the suspect, Christiana executed a U-turn
and caught up with the suspect. At 1:02 a.m., Christiana began chasing the man on foot.
As Officer A.C. Snyder appeared on scene, he heard Christiana report that he had
initiated a foot pursuit of the suspect who was reported to be “6 feet [tall] wearing all black with
6 Chick’s 911 call was played for the jury. -6- a white stripe on the sweater.” Snyder joined the pursuit on Marabou Lane but lost sight of the
suspect when he jumped a fence.
Minutes later, Officer Thomas Blagman observed a person matching the suspect’s
description walking on Marabou Lane in the direction of Nighthawk Place. When Blagman
approached the suspect, he fled along Nighthawk Place. Blagman lost sight of the suspect at
about 1:04 a.m.
Stationed as part of a police perimeter on C Avenue, perpendicular to Nighthawk Place,
Snyder observed “a person who had come from the fence line wearing all black running across C
Avenue.” As Snyder exited his vehicle, the suspect began to run. Snyder ordered the suspect to
stop. The suspect “put his hands up but ran a little farther in the parking lot of ‘Little Theater of
Virginia Beach.’” The suspect laid down and followed Snyder’s command to put his hands
behind his back. Snyder maintained the suspect, later identified as Quinones Berrios, at gunpoint
until other officers arrived. After Quinones Berrios’s arrest, Christiana identified him as the
person who had fled from him earlier on North Birdneck Road. Officers noted that it was raining
that evening and that Quinones Berrios was soaking wet when he was taken into custody.
After his arrest, Quinones Berrios was placed in an interview room with a surveillance
camera. The surveillance footage showed Quinones Berrios take off his shirt, wring it out, and
rub his hands on his arms and legs. Detective Andre Jerry administered a gunshot primer residue
kit on both of Quinones Berrios’s hands and collected his clothing—a black hat, a black shirt
with white lettering down the left sleeve, a black undershirt, black pants, and a black gaiter with
an eagle and lettering on it—for testing.
Forensic scientist Mary Keenan analyzed the primer residue kit from Quinones Berrios’s
hands. Keenan determined that “[t]here was one particle consistent with prim[er] residue in the
area marked left hand.” She found no primer residue particles on the right-hand sample. Keenan
-7- explained that the particle found was consistent with a firearm larger than a .22-caliber weapon.
She noted that the presence of the particle indicated that “either someone fired a weapon,
handled a weapon, was in proximity to the discharge of a weapon, or touched something with
prim[er] residue on it.” Keenan acknowledged that primer residue could be removed by sweat,
water, blood, or wiping.
Rivera died from the gunshot wounds he suffered in the attack. At the scene, forensic
investigators recovered a cartridge, two cartridge casings, and a projectile near Rivera’s body.
Blood stains were discovered across the parking lot, on the front of the truck next to Rivera’s
body, and between the vehicles where officers found Rivera. Police officers discovered more
blood stains in the passenger’s seat of Rivera’s silver sedan. Rivera could not be eliminated as a
contributor to the blood’s DNA profile. In Rivera’s vehicle officers also discovered several
baggies containing cocaine and fentanyl.
While officers processed the crime scene, Luis appeared driving Quinones Berrios’s
black BMW. Inside the car, officers found a plastic bag containing a folded paper with white
powder that tested negative for any controlled substances.
At 7:00 a.m., Jenna Rentz found a small bookbag on the ground behind her home at 539
Nighthawk Place in Virginia Beach. The bag contained a loaded tan handgun and some baggies.
Rentz found two other items in her yard that were not hers—a cell phone and a fanny pack on
top of a canopy that shaded her porch. The fanny pack on the canopy contained $3,465.10 of
U.S. currency, Rivera’s photo identification, a keychain, and other baggies.
Although Rentz’s small backyard was fenced, she acknowledged that the gate was not
locked and anyone could open it. Rentz noted that Nighthawk Place was a dead end and that
past her home was a wooden fence. Rentz stated that the Little Theatre was about a two-minute
drive from her home.
-8- At trial, Vasquez identified the firearm recovered from Rentz’s yard on Nighthawk Place
as Rivera’s firearm. Forensic scientists developed a DNA mixture on the trigger and grip of the
handgun. They determined that Rivera and Quinones Berrios could not be eliminated as
contributors to the DNA mixture profile. A third DNA contributor was identified on the
handgun but scientists could not identify that person.
Firearm expert Chris Luckie determined that the cartridge casings found at the crime
scene were fired from the recovered .45-caliber firearm. Luckie determined that the bullet
recovered during Rivera’s autopsy was a .45 caliber, but the bullet was too damaged to
determine if it was fired from the recovered firearm.
Rivera suffered four gunshot wounds. One bullet entered the back of his neck and exited
through his forehead, another entered his cheek and traveled to his collarbone, where the
projectile was recovered. A third bullet entered his lower lip and exited through his jaw.
Because of the stippling around this wound, the medical examiner opined that this shot likely
occurred inches to a few feet away from Rivera. Rivera was also shot in the torso. Rivera had
blunt force injuries to his right eyelid and left shoulder as well as bruises and abrasions on his
right thigh, his knees, and his right foot. Rivera’s toxicology report indicated that he had high
levels of cocaine, its metabolite, and fentanyl in his system.
At trial, the Commonwealth played a conversation between Quinones Berrios and his ex-
girlfriend, Sonia Morales, recorded while Quinones Berrios was incarcerated on June 19, 2021.7
During this conversation, Quinones Berrios admitted that he was high on drugs on the night
Rivera was killed and that he and Rivera were arguing.
7 The conversation was in Spanish but the Commonwealth admitted an English transcript of the conversation for the jury. -9- IV. Trial Proceedings
During his arraignment colloquy, Quinones Berrios affirmed that he had given his trial
attorney the names of witnesses that would testify on his behalf and that they were present for
trial. Quinones Berrios’s trial counsel clarified that none of the witnesses were present on the
first day of the scheduled four-day trial. However, the witnesses would be present later in the
week when the defense anticipated putting on its case.
After the Commonwealth rested its case in chief, Quinones Berrios alerted the court that
one of his witnesses was not present. Quinones Berrios claimed that he had subpoenaed Officer
McMahon but the subpoena was never served because McMahon had left the police force.8 In
support of his theory that Rivera was killed in a drug- or gang-related hit, Quinones Berrios
proffered that his evidence would show that an individual arrived at the scene of the shooting
before police officers, behaved strangely, and left. Given McMahon’s absence, Quinones
Berrios sought to admit a portion of McMahon’s body camera footage in which McMahon stated
to Officer Kelly that the individual had arrived before them.9 The officers stated that an
individual arrived at the scene in front of them and had failed to yield to the officers even though
their emergency lights and sirens were activated.
Quinones Berrios conceded that McMahon’s statements in the bodycam video were
hearsay. Nevertheless, he argued that his due process right to present evidence in his defense
“trumped” the rules of evidence in this case and the trial court should admit McMahon’s body
camera recording in lieu of McMahon’s testimony about what he had witnessed. He argued that
the footage was relevant, reliable—because it was supplied by the Commonwealth—and
supported his theory that someone else murdered Rivera. He contended that the court should not
8 McMahon’s first name was never disclosed at trial. 9 Kelly’s first name was never disclosed at trial. - 10 - mechanically apply the hearsay rule to prevent the admission of this relevant evidence which, he
asserted, was crucial to his defense.
The Commonwealth objected that McMahon’s body-worn-camera footage was irrelevant.
The Commonwealth noted that the individual was not dressed as the assailant had been, and
there was no evidence the individual who appeared at the scene had a gun. Although the body
camera recording of another officer on the scene, Sergeant Frank Filippone, showed the
individual begin to lift his phone, and indicated that officers told the individual not to take
photographs, there was no evidence that the individual ultimately photographed Rivera’s body or
the crime scene. The Commonwealth contended that even if the individual took a picture, there
was no evidence that the individual was anything more than a curious bystander.
The trial court found that McMahon’s body camera footage was inadmissible. The trial
court reasoned that the statements in McMahon’s body camera footage were hearsay that did not
meet any exception. Further, the conversation between McMahon and Kelly was not the “only
evidence that’s out there of this other person.” Instead, Filippone could testify to the presence of
the third person, who also appeared in Filippone’s body-worn-camera footage. The trial court
noted, however, that Quinones Berrios was not precluded from asking for reconsideration of the
issue.
In his defense, Quinones Berrios called Filippone as a witness. Filippone testified that he
and his partner responded to a shooting on Fountain Lake Drive on June 11, 2021. After
Filippone finished taping off part of the crime scene, he noticed that people were congregating in
front of the apartments several yards in front of the body. One of the individuals “appeared to
raise what [Filippone] assumed to be a phone.” Believing the person was preparing to
photograph the body, Filippone yelled, “Hey, don’t take a picture. Have some common sense
and decency.” The individual then walked away.
- 11 - Filippone attested that he activated his body camera that morning and that it was a fair
and accurate depiction of what he saw at the crime scene. In the footage, Filippone identified the
officer standing next to him, and shielding Rivera’s body from view, as McMahon. Filippone
identified the individual he admonished as the man in long pants and a button-down shirt. After
Filippone admonished the individual not to photograph Rivera’s body, he walked off screen
toward another apartment building and a parking lot.
Filippone was then shown Kelly’s body-worn-camera video. Kelly’s body-worn camera
depicted Kelly taping off the area several yards in front of Rivera’s body. As Kelly discussed
where he should tape the scene, an individual walked by him. Filippone identified the individual
who walked past Kelly as the same individual that he had admonished moments earlier.
On cross-examination, Filippone admitted that he never talked to the individual he had
admonished or determined whether that individual took a photograph. He further acknowledged
that people routinely attempt to take pictures of crime scenes. Quinones Berrios then played
several body-worn-camera clips depicting statements Valle gave to investigators at the crime
scene.
Outside the presence of the jury, Quinones Berrios renewed his motion to admit
McMahon’s body worn footage into evidence. Quinones Berrios played the contested footage
for the court and argued that unlike other hearsay declarants, McMahon had no interest to lie.
Further, he asserted that McMahon’s statements were reliable because they were recorded on an
officer’s body-worn-camera footage that the Commonwealth provided to him. He argued that
because the body-worn-camera footage was relevant and reliable, the court should not
mechanically apply the hearsay rule to prevent the admission of this evidence.
The Commonwealth objected on hearsay grounds. The Commonwealth argued that “the
hearsay rules exist because they provide . . . procedural due process.” Further, the
- 12 - Commonwealth asserted that its own due process rights were in jeopardy because it could not
flesh out the context in which McMahon made his statements. The trial court sustained the
Commonwealth’s hearsay objection and refused to admit McMahon’s body camera video.
After argument from counsel, the jury convicted Quinones Berrios of the charges and the
trial court sentenced him to 43 years of incarceration, with 10 years suspended. Quinones
Berrios appeals.
ANALYSIS
I. Admissibility of McMahon’s Body-Worn-Camera Footage
Quinones Berrios asserts that the trial court violated his due process rights by excluding a
clip of McMahon’s body-worn-camera footage, even though it was hearsay. Determining the
“‘admissibility of evidence is within the discretion of the trial court,’ and an appellate court will
not reject such decision absent an ‘abuse of discretion.’” Williams v. Commonwealth, 71
Va. App. 462, 487 (2020) (quoting Tirado v. Commonwealth, 296 Va. 15, 26 (2018)). “The
abuse of discretion standard draws a line—or rather, demarcates a region—between the
unsupportable and the merely mistaken, between the legal error . . . that a reviewing court may
always correct, and the simple disagreement that, on this standard, it may not.” Jefferson v.
Commonwealth, 298 Va. 1, 10-11 (2019) (alteration in original) (quoting Reyes v.
Commonwealth, 297 Va. 133, 139 (2019)). “[T]he abuse of discretion standard requires a
reviewing court to show enough deference to a primary decisionmaker’s judgment that the
[reviewing] court does not reverse merely because it would have come to a different result in the
first instance.” Commonwealth v. Thomas, 73 Va. App. 121, 127 (2021) (alterations in original)
(quoting Lawlor v. Commonwealth, 285 Va. 187, 212 (2013)).
The hearsay rule excludes as inadmissible any out-of-court statement “offered in
evidence to prove the truth of the matter asserted.” Va. R. Evid. 2:802, 2:801(c). Here,
- 13 - Quinones Berrios sought to introduce statements made by McMahon and Kelly that the
suspicious individual who later appeared to take a picture of Rivera’s body had arrived before
the police officers. Those statements were made outside of court and were offered by the
defense to prove that the man arrived before police officers. And Quinones Berrios points to no
exception which would permit these hearsay statements to be admitted. See, e.g., Va. R. Evid.
2:803, 2:804. The trial court thus did not err in concluding, as an initial matter, that the
statements were inadmissible hearsay.
But the Due Process Clause of the Fourteenth Amendment at times compels an exception
to the rules of evidence. See Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973). In
Chambers, the state rule preventing impeachment of one’s own witness prevented a defendant
from challenging a witness’s in-court repudiation of three prior confessions to the murder at
issue. Id. at 296-98. At the same time, hearsay rules prevented the defendant from putting
forward testimony that the witness had previously confessed to the murder. Id. at 298. Taken
together, these errors “deprived Chambers of a fair trial.” Id. at 303. As to hearsay in particular,
the Court concluded that “where constitutional rights directly affecting the ascertainment of guilt
are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice”
and exclude evidence bearing “persuasive assurances of trustworthiness.” Id. at 302. In
particular, the exclusion of hearsay evidence that is “highly relevant to a critical issue” violates
the Due Process Clause of the Fourteenth Amendment when “substantial reasons exist[] to
assume [the evidence’s] reliability.” Green v. Georgia, 442 U.S. 95, 97 (1979).
Based on this body of law, this Court has concluded that “[c]ombined, the rights to
compulsory process, confrontation and due process give the defendant a constitutional right to
present relevant evidence.” Neeley v. Commonwealth, 17 Va. App. 349, 356 (1993). But at the
same time, defendants “must comply with established rules of procedure and evidence designed
- 14 - to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. (quoting
Chambers, 410 U.S. at 302). “The adversary process could not function effectively without
adherence to rules of procedure that govern the orderly presentation of facts and arguments to
provide each party with a fair opportunity to assemble and submit evidence to contradict or
explain the opponent’s case.” Grattan v. Commonwealth, 278 Va. 602, 623 (2009) (quoting
Taylor v. Illinois, 484 U.S. 400, 410-11 (1988)). “[T]he mere invocation of [the due process
right] cannot automatically and invariably outweigh countervailing public interests.” Id.
(quoting Taylor, 484 U.S. at 414).
Here, Quinones Berrios seeks to introduce statements from McMahon’s
body-worn-camera footage that the suspicious individual arrived before police, in support of his
hypothesis of innocence—that someone else killed Rivera in a drug-related execution and the
individual at the crime scene was confirming the hit. The evidence was at least relevant to
Quinones Berrios’s defense, establishing how the unknown man came to be at the site—he
arrived quickly, before the police, suggesting some foreknowledge of Rivera’s death. Further,
the evidence—unprompted statements by police officers at the crime scene, though uttered about
forty minutes after they witnessed the man arrive—may have been highly reliable. See
Chambers, 410 U.S. at 302. But in the context of the evidence as a whole, the statements were
not so crucial that due process compelled their admission. As the trial court pointed out, other
video evidence showed the man at the scene, that he appeared to be taking a photograph, and that
officers had told him to stop. He seemed to be texting, and then left the scene quickly, while
police were still taping off the area. In addition, the court permitted Quinones Berrios to argue at
closing that the man’s behavior was suspicious and indicative of someone taking verification of a
hit. His arguments on that point were brief—only one argument among many intended to raise a
reasonable doubt in the minds of jurors. In the context of the whole case, McMahon’s statements
- 15 - on video were not so central to Quinones Berrios’s defense that its exclusion fundamentally
deprived him of a fair trial. See id. at 303. The trial court therefore did not abuse its discretion
in excluding the video as inadmissible hearsay.
II. Sufficiency of the Evidence
Quinones Berrios also argues that the trial court erred when it denied his motion to strike
the charges. In challenging the trial court’s denial of his motion to strike the second-degree
murder and accompanying firearm charge, Quinones Berrios necessarily asserts that the jury
should not have been allowed to even consider the charges because “[a] motion to strike
challenges whether the evidence is sufficient to submit the case to the jury.” Linnon v.
Commonwealth, 287 Va. 92, 98 (2014) (quoting Lawlor, 285 Va. at 223). As a result, we must
determine whether the evidence presented “a prima facie case [of second-degree murder and use
of a firearm in the commission of a felony] for consideration by the” jury. Vay v.
Commonwealth, 67 Va. App. 236, 249 (2017) (quoting Hawkins v. Commonwealth, 64 Va. App.
650, 657 (2015)).
“Whether the evidence adduced is sufficient to prove each of th[e] elements [of an
offense] is a factual finding, which will not be set aside on appeal unless it is plainly wrong.”
Linnon, 287 Va. at 98 (quoting Lawlor, 285 Va. at 223-24). “In reviewing that factual finding,
we consider the evidence in the light most favorable to the Commonwealth and give it the benefit
of all reasonable inferences fairly deducible therefrom.” Id. (quoting Lawlor, 285 Va. at 224).
“After so viewing the evidence, the question is whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Lawlor, 285
Va. at 224).
Quinones Berrios contends that the Commonwealth failed to prove his identity as the
perpetrator of each offense beyond a reasonable doubt. He asserts that he had no motive to kill
- 16 - Rivera and that it was a mere coincidence that he and the shooter both wore a black shirt with
white lettering that evening. He also contends that no eyewitnesses identified him as the shooter
and that Valle could not recognize the shooter’s voice as his. To explain the presence of his
DNA on the gun, he asserts that Rivera gave him the firearm earlier that evening. Further, the
Commonwealth’s own evidence established that primer residue could be transferred from merely
touching a recently fired firearm. Finally, Quinones Berrios argues that the evidence failed to
disprove his reasonable hypothesis of innocence—that someone else killed Rivera.
“At trial, the Commonwealth bears the burden of proving the identity of the accused as the
perpetrator beyond a reasonable doubt.” Cuffee v. Commonwealth, 61 Va. App. 353, 364 (2013)
(quoting Blevins v. Commonwealth, 40 Va. App. 412, 423 (2003)). But “[o]ur inquiry does not
distinguish between direct and circumstantial evidence, as the fact finder itself ‘is entitled to
consider all of the evidence, without distinction, in reaching its determination.’” Commonwealth v.
Moseley, 293 Va. 455, 463 (2017) (quoting Hudson, 265 Va. at 513). “[T]he combined force of
many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.” Muhammad v. Commonwealth, 269 Va. 451, 479 (2005) (citing
Hudson, 265 Va. at 514). Where the Commonwealth relied on “circumstantial evidence to carry its
burden of proof beyond a reasonable doubt, ‘all necessary circumstances proved must be consistent
with guilt and inconsistent with innocence.’” Moseley, 293 Va. at 463 (quoting Commonwealth v.
Smith, 259 Va. 780, 783 (2000)).
While the Commonwealth bears a weighty burden of proof, the fact finder has “[t]he sole
responsibility to determine the credibility of witnesses, the weight to be given to their testimony,
and the inferences to be drawn from proven facts.” Blankenship v. Commonwealth, 71 Va. App.
608, 619 (2020) (quoting Ragland v. Commonwealth, 67 Va. App. 519, 529-30 (2017)). Moreover,
“[t]he conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only
- 17 - when we find that the witness’[s] testimony was ‘inherently incredible, or so contrary to human
experience as to render it unworthy of belief.’” Ashby v. Commonwealth, 33 Va. App. 540, 548
(2000) (quoting Fisher v. Commonwealth, 228 Va. 296, 299-300 (1984)). “In all other cases, we
must defer to the conclusions of ‘the fact finder[,] who has the opportunity of seeing and hearing the
witnesses.’” Id. (alteration in original) (quoting Schneider v. Commonwealth, 230 Va. 379, 382
(1985)). And “[m]erely because [a] defendant’s theory of the case differs from that taken by the
Commonwealth does not mean that every reasonable hypothesis consistent with his innocence has
not been excluded.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (quoting Haskins v.
Commonwealth, 44 Va. App. 1, 9 (2004)). We leave to the fact finder to determine how to weigh
the evidence. Id.
Here, the evidence at trial was sufficient for a rational fact finder to convict Quinones
Berrios of second-degree murder beyond a reasonable doubt. Both Valle and Vasquez admitted
that they, along with Rivera, Quinones Berrios, and Luis, were at Walmart in the early morning
hours on June 11, 2021. The Commonwealth presented surveillance footage from Walmart that
showed Quinones Berrios, Rivera, Luis, Valle, and Vasquez. Both Valle and Vasquez identified
themselves in the surveillance footage and identified Quinones Berrios as the tall man wearing a
black baseball hat, a black long-sleeved shirt with white lettering down the left sleeve, and black
pants. The surveillance footage was admitted as an exhibit and was available to the jury to
permit the jurors to draw their own conclusions regarding the identity of those depicted in it.
Valle testified that when she and Rivera arrived home, a man approached their vehicle
from behind. The man stated, “Because you f***ed with us” in a Puerto Rican dialect of
Spanish and simultaneously shot Rivera. Valle turned and saw that the assailant wore a black
shirt. Upon realizing what was happening, Valle fled. However, she looked back at the shooter
and observed that he wore a predominantly black neck gaiter with some color, and a black hat.
- 18 - Three eyewitnesses who observed the shooting testified at trial. Each witness testified
that they heard a noise that attracted their attention. Millirons and Hamze both testified to seeing
a man wearing a black shirt with white on the left sleeve, and dark or black pants. He was
described as “tall” or between 5’8” and 5’10”. Hamze noted a black hat. Millirons and Hamze
saw the man approach Rivera with a pistol as Rivera backpedaled with his hands up. Millirons,
Hamze, and Chick each saw Rivera stumble and fall between two trucks, and the armed man
shoot Rivera from mere feet away. As each of the eyewitnesses called 911, they described the
assailant and told dispatch that he fled toward Old Virginia Beach Road. Chick testified to
following the shooter and seeing him flee from Old Virginia Beach Road to North Birdneck
Road. When the shooter arrived at the intersection of Waterfront Drive and Marabou Lane,
Chick saw police vehicles surround the shooter.
As officers responded to the scene, they observed a man matching the suspect’s
description on North Birdneck Road. Officers chased the suspect along North Birdneck Road
and then Marabou Lane until they lost sight of him. Minutes later, officers observed a man
wearing all black on Nighthawk Place but the suspect again evaded capture. The police
established a perimeter around the residential area and eventually they arrested Quinones
Berrios; officers confirmed that he was the man who had fled from them earlier. When
Quinones Berrios was arrested, he was wearing a black hat, black shirt with white lettering down
the left sleeve, and black pants. He also had a predominantly black gaiter on his person. The
jury was shown body camera footage, interview footage, and photographs of the clothing
Quinones Berrios wore that evening.
On the morning after the shooting, a fanny pack containing Rivera’s identification and
thousands of dollars in U.S. currency, as well as a bookbag containing a tan .45-caliber firearm,
were recovered along the route that Quinones Berrios followed as he fled from the police. The
- 19 - gun was the same firearm that Rivera gave to Quinones Berrios earlier in the Walmart parking
lot. The recovered firearm was determined to have fired the two cartridge casings found at the
scene. Further, Quinones Berrios could not be eliminated as a contributor to the DNA mixture
found on the firearm’s trigger and grip. Officers found a particle consistent with firing a firearm
greater than a .22 caliber on Quinones Berrios’s left hand. And during a recorded phone
conversation played for the jury, Quinones Berrios admitted that he and Rivera were arguing on
June 11, 2021, and that he was high on drugs. Considering the totality of the evidence, a
reasonable fact finder could conclude beyond a reasonable doubt that Quinones Berrios was the
man who shot Rivera and find him guilty of second-degree murder.
Having concluded that the evidence supports Quinones Berrios’s conviction for
second-degree murder, we also conclude that a reasonable fact finder could have convicted him
of use of a firearm in the commission of a felony. To sustain Quinones Berrios’s firearm
conviction, the Commonwealth was required to prove that he “use[ed] or attempt[ed] to use any
pistol, shotgun, rifle, or other firearm . . . while committing or attempting to commit . . . murder.”
Code § 18.2-53.1. Quinones Berrios challenges his conviction only on the basis that the
Commonwealth failed to prove that he had committed murder. Accordingly, finding the evidence
sufficient for the murder charge, we also affirm his conviction on the firearm charge.
CONCLUSION
Because the circuit court’s exclusion of McMahon’s body-worn-camera footage under the
hearsay rule did not violate Quinones Berrios’s due process rights, and the circuit court did not err
in denying Quinones Berrios’s motions to strike, we affirm the circuit court’s judgment.
Affirmed.
- 20 -