Com. v. Agudio, J.

• Court: Superior Court of Pennsylvania
• Decided: July 24, 2025
• Docket: 1195 EDA 2024
• Status: Unpublished

Opinion

J-S48009-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA M. AGUDIO JR. : : Appellant : No. 1195 EDA 2024

Appeal from the Judgment of Sentence Entered November 17, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0007119-2021

BEFORE: STABILE, J., NICHOLS, J., and BENDER, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JULY 24, 2025

Appellant, Joshua M. Aguido, Jr., appeals nunc pro tunc from the

November 17, 2022, judgment of sentence imposing life imprisonment for first

degree murder. We affirm.

The record reveals that Appellant had an ongoing feud with co-

defendant Edwin Islas-Cruz because several of Islas-Cruz’s friends implicated

Appellant in an unrelated matter involving the unlawful purchase of a firearm.

Appellant and Islas-Cruz traded barbs via social media until the dispute

culminated in a shoot-out on Astor Street in Norristown, Pennsylvania. The

victim, Barry Fields, an innocent bystander, was caught in the crossfire and

killed by a single gunshot wound to the head. Appellant was arrested in

Philadelphia on September 29, 2021, eleven days after the shooting. The

Commonwealth proceeded against him on a theory of transferred intent first- J-S48009-24

degree murder.1 Appellant and Islas-Cruz were tried together in a four-day

trial beginning on November 14, 2022. On November 17, 2022, a jury found

Appellant guilty of first degree murder.2 Immediately thereafter, the trial

court imposed a sentence of life imprisonment without parole. This timely

appeal followed.

The sole issue before us is the trial court’s denial of Appellant’s pretrial

motion to exclude from evidence a video from Appellant’s Instagram which

shows Appellant brandishing a handgun and concludes with Appellant asking

Islas-Cruz to Facetime him. The video was posted approximately three hours

after the shooting. Appellant argues that the video was irrelevant and unfairly

prejudicial because Appellant did not dispute his identity as one of the

shooters, and because the shooting happened before the video was posted.

The admissibility of evidence is committed to the sound discretion of the

trial court; we will reverse only if the trial court abused its discretion.

Commonwealth v. Hernandez, 230 A.3d 480, 489 (Pa. Super. 2020). “An

abuse of discretion may not be found merely because an appellate court might

have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

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1 18 Pa.C.S.A. §§ 303, 2502(a).

2 The jury also found Islas-Cruz guilty. Islas-Cruz appealed and this Court affirmed the judgment of sentence on October 30, 2023. Commonwealth v. Islas-Cruz, 3100 EDA 2022.

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support so as to be clearly erroneous.” Commonwealth v. Johnson, 42

A.3d 1017, 1027 (Pa. 2012), cert. denied, Johnson v. Pennsylvania, 569

U.S. 922 (2013). When the trial court provides a statement of its reasoning

for its evidentiary ruling, our scope of review is limited to the trial court’s

statement. Commonwealth v. Minerd, 753 A.2d 225, 229 (Pa. 2000).

Evidence is relevant if “(a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. The trial court may

exclude relevant evidence if its probative value is outweighed by the danger

of unfair prejudice. Pa.R.E. 403. Rule 404 governs the admissibility of other

acts, such as Appellant’s Instagram video, posted three hours after Fields’

murder, showing himself waving a gun. Such evidence is not admissible to

prove Appellant’s character, or to prove that he acted in accordance with the

depicted character in this case. Pa.R.E. 404(b)(1). Other acts evidence is

admissible, however, to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.

404(b)(2). The list in Rule 404(b)(2) is not exhaustive. Other acts are

admissible, for example, as res gestae, to complete the story of the crime.

Commonwealth v. Crispell, 193 A.3d 919, 936 (Pa. 2018). That is, an act

may be admissible to demonstrate the natural development of events. Id.

(citing Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013)).

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Further, Rule 404(b) can be applied to acts that occur after the

commission of the crime. Commonwealth v. Wattley, 880 A.2d 682, 687

(Pa. Super. 2005), appeal dismissed, 924 A.2d 1203 (Pa. 2007). “Although

evidence of a subsequent offense is usually less probative of intent than

evidence of a prior offense, evidence of a subsequent offense can still show

the defendant's intent at the time of the prior offense.” Id. (quoting

Commonwealth v. Collins, 730 A.2d 418, 423 (Pa. 1997), cert. denied, 525

U.S. 1015 (1998)) (emphasis added in Wattley).

We turn now to the trial court’s explanation for admitting the video in

question:

At trial, through the testimony of Lieutenant [William] Mitchell, the Commonwealth introduced evidence of [Appellant’s] social media account. All of the videos were played in the context of the Lieutenant’s testimony about Islas-Cruz’s social media account and [Appellant’s] social media account. Through his testimony, the Commonwealth was demonstrating the unfolding of the dispute between Islas-Cruz and [Appellant], starting from when [Appellant] posted discovery from his illegal straw purchase gun case and calling Islas-Cruz’s friends rats. As evidence from the social media postings, the dispute escalated over time.

More specifically, to put the disputed video in context of the lieutenant’s testimony, on September 16[, 2021,Appellant] had a conversation with Miguel Torres’s account. That conversation seemed to refer to Islas-Cruz, wherein [Appellant] stated, ‘We gotta take him down.’ [Appellant] knew Islas-Cruz was in Norristown and that he had a gun. At this point, Lieutenant Mitchell testified to a video from September 17[, 2021,] at 6:20 p.m., wherein [Appellant] was in an Instagram Live video with a silver gun and was rapping about ‘getting back in blood.’ The Lieutenant continued to testify as to the social media evidence, and in particular, as to the video at issue, the September 18[, 2021,] Instagram Live video taken at 8:53 p.m., about three and a half hours after the murder. In that video, [Appellant was seen

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waving around a gun. At the end of the video, [Appellant] said, ‘FaceTime me.’ At about 9:33 p.m., there was a video call between [Appellant’s] account and Islas-Cruz’s account that lasted 32 seconds.

These videos admitted into evidence told a story, and in particular, the September 18 th video taken after the murder completed the natural development of the case. It also went to [Appellant’s] motive, intent, and countered his claim of self- defense. It showed that even several hours after the murder, at the time the September 18th video was taken, [Appellant] invited interaction with Islas-Cruz and attempted to provoke him. It showed he wasn’t fearful of Islas-Cruz and that he didn’t try to shoot him out of fear. For these reasons, the video was properly admitted,. Further, this court provided the jury with a cautionary instruction.

Trial Court Opinion, 5/23/24, at 11-13 (record citations omitted).

This Court has held that a defendant’s gun brandishing can be

admissible under Rule 404(b)(2). In Commonwealth v. Green, 76 A.3d 575

(Pa. Super. 2013), appeal denied, 87 A.3d 318 (Pa. 2014), a witness observed

the defendant pointing a gun at the eventual victim and threatening her. The

incident happened two or three months before the defendant shot the victim.

Id. at 583. While the prior act did not qualify as res gestae, owing to the span

of time between it and the shooting, it was relevant to demonstrate the

defendant’s mens rea for the charged offenses. Id. at 585.

In Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014), cert.

denied, 574 U.S. 863 (2014), the trial court admitted evidence that the

defendant burned down his house after murdering his wife and son in it, even

though the Commonwealth did not charge him with arson. Our Supreme Court

concluded that the evidence was properly admitted to demonstrate the

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defendant’s intent to commit first-degree murder, and for res gestae purposes

to explain the removal of the victim’s bodies from the home and to explain

the evidence police recovered from the scene. Id. at 665-66.

Green and Hairston are instructive here. In Green, the defendant’s

brandishing of his weapon at the victim in a prior event was admissible to

demonstrate his intent. Similarly, the trial court in this case admitted the

Instagram video because it demonstrated Appellant’s intent and helped to

negate his self-defense theory of the case. And here, as in Hairston,

Appellant’s acts shortly after committing murder were admissible as res

gestae, to complete the story of the case. Indeed, Appellant’s Instagram post

was one of a series of social media posts evidencing the ongoing feud between

Appellant and Islas-Cruz. Appellant’s brandishing a firearm in the video and

prompting Islas-Cruz to FaceTime him are actions that undercut Appellant’s

theory of self-defense and help to demonstrate his intent to murder Islas-Cruz

during the gunfight that took Fields’s life.

Appellant also argues that the video’s probative value was outweighed

by its potential for unfair prejudice. We disagree. “The trial court is not

required to sanitize the trial to eliminate all unpleasant facts from the jury’s

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged.” Hairston, 84 A.3d at 666. As discussed

just above, Appellant’s post-murder Instagram post was just one in a series

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of social media posts that came into evidence in this case. This post was part

of the history and development of this case and therefore was not unfairly

prejudicial.

For the foregoing reasons, we discern no abuse of discretion in the trial

court’s decision to admit Appellant’s post-murder Instagram video into

evidence. We therefore affirm the judgment of sentence.

Judgment of sentence affirmed.

Date: 7/24/2025

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