Com. v. Barreto, A.

Opinion

J-S57010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

AXEL BARRETO Appellant No. 1258 EDA 2014

Appeal from the Judgment of Sentence November 14, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004008-2012 CP-51-CR-0004009-2012

BEFORE: MUNDY, J., OTT, J., and STABILE, J. JUDGMENT ORDER BY MUNDY, J.: FILED DECEMBER 30, 2015 Appellant, Axel Barreto, appeals nunc pro tunc from the November 14, 2013 aggregate judgment of sentence of life without the possibility of parole, imposed after being found guilty of three counts of first-degree murder, four counts of attempted murder, and possession of an instrument of crime (PIC).1 After careful review, we affirm.

On appeal, Appellant argues the evidence was “insufficient as a matter of law where there was no evidence that he had a specific premeditated

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1 18 Pa.C.S.A. §§ 2502(a), 901(a), and 907(a), respectively. Specifically, Appellant was sentenced to life without the possibility of parole on each murder count, 10 to 20 years’ imprisonment on each attempted murder count, and 2 ½ to 5 years’ imprisonment on the PIC count with each sentence to run consecutively.

J-S57010-15

intent to kill and where [] Appellant legally established a valid self[-] defense.” Appellant’s Brief at 14. Additionally, Appellant asserts a claim of prosecutorial misconduct based on the Commonwealth’s closing arguments. Id. at 17. Specifically, Appellant argues the Commonwealth implied he was lying and that he “was picking and choosing additional defense when the evidence was incorrect for the first defense.” Id. at 18-19. Further, he argues the Commonwealth improperly commented on the truthfulness of Appellant’s witnesses and Appellant’s failure to present certain witnesses. Id. at 19.

Upon careful examination of the certified record, we conclude that the trial court has authored a 22-page opinion that thoroughly and comprehensively addresses Appellant’s claims. Accordingly, we affirm on the basis of the well-reasoned December 4, 2014 opinion of the Honorable Rose Marie DeFino-Nastasi. We therefore adopt the trial court’s opinion as our own and incorporate it in this judgment order.2 In the event of further proceedings, the parties shall attach a copy of the December 14, 2014 trial court opinion to any filings.

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2 We express no opinion on the final paragraph of the trial court opinion on page 21, as that specific issue is not raised by Appellant on appeal, and therefore, is not presently before us to review.

3

J-S57010-15

Based on the foregoing, we conclude Appellant’s issues on appeal are devoid of merit. Accordingly, the trial court’s November 14, 2013 judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2015 ll\ THE COURT OF COMHON PLEAS OF PHlLAOELPJllA CRIMINAL TRIAL l)l\'ISION COMMONWEALTII er: PENNSYLVA1'IJ1. CP-06-CR-0004008-2012 v. CP-06-CR-0004009-2012 AXEL 8/\RRE"l O

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Rose Marie DeF no-Nastasi. J. l ··

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PROCEDURAL HISTORY On November 8.2013. the Defendant was found guilty after a jury trial. presided over by Honorable Rose Marie De+ino-Nastasi. of three counts uf First Degree Murder, l 8 Pa.C.S. § 2502(a), as a Id .iny of me first degree: four counts of Attempted Murder. 18 Pu.C.S. ~ 90 l , as a

felony of the fir:;t degree; and Possession or an lnstrumcru of Crime (PTC). 18 Pa.C.S. * 907(b), as a misdemeanor of the first degree.

Followir.g a Death Penalty Hearing. on :'\ovembcr l 4.2013. the Defendant V\ as sentenced to lih imprisonment without the oossibility or parole for the first dcgre« murder of Javier Orlandi; a consecutive lite sentence without the possibility of parole tor the first degree murder of Joshi a Suto: a consecutive life sentence without the possibility of parole for the first degree murder «f'Dante Lugo: a consecutive sentence often (10) to twenty (20) years for the attempted murd ~r ofA; ron Marrero: a cone urrent sentence of ten ( l 0) to twenty (20) years for the attempted n: urdcr o.: Brandon Hernandez: a concurrent sentence or ten ( I 0) to rwcntv (20) years fur the alt empted murder of Christian Nunez: a concurrent sentence of' ten ( 10) to twenty (20) years for tt c attempted murder of Angel Rodriguez: and two and a half (2 ~'~) to Iivc { 5)

years for the Pl( con vie .iou. to nm concurrently. Notes of Testimony (N.T.) 1 I 114/l 3 at PP· 9- 10.

On February 7,: O 14. Defendant Ii le J a PCRA to reinstate Appellate Rights Nunc Pro Tune which was granted on April 22. 201-L On April 24. 20 4. a notice or appeal was filed.

On August 25. '2014. Dcfcndants lT1.111sel filed a Statement of Matters Complained of on appeal, pursuan: to an order of the court directing counsel to Jile a 1925(b) statement.

FACTS

On Janu iry 10. :~012. Defendant Axel Barrero opened fire on a car filled with seven unarmed teenage boys who had come to the Defendant's Juniata Park home on the 4000 block of Neilson Street t,J fistfig u one or his stepsor s. Benny 1 orres. N.T. 10/29/13 at 66:4--2:2. Aaron Marrero ( age si.accn). Christian Nuner (agt· Iouneen). Brandon f Icrnandcz (age eighteen). Javier Orlandi (age fo1111ce11). Joshua Soto (age fourteen}. Dante l ugo (age fourteen) and his brother, Angel Rodriguez (age fifteen) were all occi pants of the vehicle and members ota teenage gang which cal led ils::I f K ra:- y Ass t\.._)Ul;dK.t\ 13 ).1 N. l', 10/25/13 at 64 :7-25: 10/31/1 J al 32: 7-13. Benny Torres \H\S Christiaus classmate and a member ofa rival gaug. Eric Torrcsdalc Boys (ETB). N.T. 10.29/13 at 34:6-::!4: 1012-+113 1t 160:5-10.

Aaron Marrero was treated for a gunshot wound to the back of his neck and survived .

~ all died as a result of their injuries.

Joshua Sow, Javier Orl.indi, and Dante l.uuo - :"J.T. lil/29/13 at

188:15-19. 2os.10-13. n4:12-10.

Aaron i\ larrero. Brandon Ilernande. .. :'\ ugcl Rodriguez. and Chri st ian Nunez tcsti ficd to the events leadi rg up tr the shooting. On the night or· the crime. the sev en boys drove to J1111iat3

I Different Commc nwcalth vitnesses referred to Kf !3 as 111e~111ing K1~>it1g All Bitcb?, or l,rn,y Ass Boulz or Kick As, Boulz. N.1. l( ·2..r13 at l::'6:7-2.?; 10'28.13 at 34:-t,25.

Park. spray-painted KAB on a fence. and tock a photo in front of it. N.T. 10/25/13 at 153:6-15. In the photo. the boys made a ··K' with their hands. ld. at pp. 156·57. Christian posted the photo on F acebook. Tr c Defeudant's stepson. Benny. commented on the photo: =Nowadnys people just don't know how to act. {.s:· Id. at 157:6-1:.; 10/:29/13 at43:l9-21, 82:13-19. 129:16-21. Christian testific d that F.. S. stands for ··real xhit." id at 84:3-l l. The comment incited an argument betwc m Christian and Benn) on laccbook. The two arranged to meet outside of the Defendant's hone on Neilson Street 10 tistf ght. The 10\11 drove to the Defendant's home. They did not bring an r weap<.•m? with them. N.1. I 0/24/ l 3 al pp. l 33·3-L 10/25/l 3 at pp. 12-13.

When the KAB arrived. they observed a male in El grey hooded sweatshirt. later identified as the Defendant. stand.ng on the porch smoking a cigarette. N.T. I 0/15113 at 172: 19-25; l 0/29/13 at 46:~ - l 4. Javier rolled down the window and said '"KAB:· Id. at ,17:3-6: l 0/24/13 at 132: 19-24. The K.i\8 circled the block in their vehicle. When they returned, the Defendant was no longer outsic c. Aaron parked in an alley connecting Castor i\ venue and Neilson Street. /J. at 48:8-14. Christian messaged Benny on Faccbook telling him to come outside: Benny replied that he already had c ornc outside. Id at -+8: l 5-2L Christian and Dante exited their vehicle and peeked around lhe corner at the Defendant's home, id. at 49:2-7: l 0/25/14 at l 60: 19-25. I\ minivan approached fror 1 the or positc end of the alley. Christian and Dante got back in their vehicle. N.T. 10/25/I-~ at p. 176 The boys prepared to leave. Aaron "as driving: Joshua sat in the front

passenger" s sea : Dante sat behind Aaron: J,nt:cl sat to the riuht of Dante: Christian sat on - ~ ._. I

Angers lap: Javier sat to the right of Angel and Brandon sat behind Joshua. Id. at pp. 177- 78: l 0/29/ 14 at 5 U,-22.

2 I\ loose chain wa , found ir the backseat or their vehicle. N. l. I (.!'2-1 13 at I 1.3:5-20. Aaron Marrero test: lied that he used the chain hr his A.IV and thdL none of tlre t ovs intended to use it as a weapon. Id at 159:2-2..J.

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Aaron Marrero ie stified that the van parked a tcw feet in front of their vehidc'.. N.'1.

l 0/24/13 at pp. 138-39. ·Nhih.: he was looking al the van "waiting Ior somebody to get out." he saw the Defendant "con: ing out of the al leyway .' hi. at 138::!.1-25: 139: 1-l- l 7. lhe Defendant approached Iron 1 the right side of their vehic le. Id at 140 '. l +21. The Defendant took approximately tvvo step: towards their vehicle. "looked right in the front windshield," .. lifted up his sweater, grabbed his gun, and just started shooting." Id at 141 :3-13: 142:2-<>~ 145: 17-24. The Defendant did n:n say u vything. id. at ! 42: 13-14. Ile just started shooting at .. the from

windshield on tl.e bouo.n riuht-hand corner .. id al 142: 10-12: 146:2-12. When the Defendant '°

pulled out the gun. Aaron .. thought he wus roing to say leave. get out of here or something but he started shoot ng .. ." Id al 144:3-12: J 4(d 1-23.

Aaron te siificd that he drove away as soon :.1$ he heard the first shot. I le ..went straight out [of] the alleyway bl t on an angle to go around the x au" and then "straight out" towards Castor Avenue. Id. at l-14~13-24. At no point did he try to run the Defendant over. Nor did he try to drive in the direction where the Defendant was standing off to the right of their vehicle. Id. The Defendant 1ever moved .. from the spot where be was when he began firing." id at J 72:5-8. Aaron testified 'hat he continued to hear shots as he was pulling away. Id. at l 48: 11-13. He heard glass breaking s nd the other males in the car screaming. ) c!ling. and er) ing, Id at pr. 14 7-48. Ile heard approximately ni re ( 9) or ten ( 10) shots in total. Id at 149: l lJ-::!.'.2. Aaron further testified that just before 1e drove out of the nllcyway. the Defendant shot him in the back of his neck. Id at pp. 148-49.

Brander Hernandez testified that aficr they parked in the alleyway. he got out of their vehicle and walked to L te sidewalk at Neilson Street. N. I. I 0/25/13 at pp. 18-20. The van pulled up. He thought hen: were people in the var and that it ,,.,as some sort of setup. so he got back in

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their vehicle. The Defendant approached the r vehicle. took approximmely two ('.?.) to three (3) steps. reached for his gua. and started shoaling. Id <il p. 22: 47:2-6. ThL: Defendant pointed his gun at the right t ide oft icir vehicle, into the part of the car where they were all seated. Id. at p. 25. The Defendr nt shot from the front of die ir vehicle to the back. !J. at 14:22-2-L Brandon stated that once .he Defendant pulled out his gun. Aaron tried to drive off. Since the van was blocking their vehicle Crom leaving. Aaron had to dri vc around the van to get out of the alleyway. JJ at pp. 25-::6. None otihc bovs said anything to the Dclendam. Id at 36:19-14. Aaron never tric cl to rur the Defendant 0Ye1 or drive at him. Id at ><>: \ 8-24. Brandon heard the

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sound of broker ulass and gunshots as thev. drove out of the al levw . av. Id at 27:4-9: ,;

49: 16-18. I le

knew that the Defendant continued to shoot into their vehicle as Lhey drove away because he saw Aaron get shot in the br.ck ofhis neck. Id at 27:6-1-+.

Angel Rodriguez testified that he saw the Defendant come our from the center of the alleyway, pull a gun frc m his waist. point it towards their vehicle. and shoot into the front windshield on tl\! passc ngcrs side. \.T I Oi28!13 at pp. 5-7: J.l.-15. Everyone in their vehicle ducked. Id at 1 U2-15 At no point did Aaon tr) to drive the car in the direction of the Defendant. Id , t 16:4-6. As soon as shots v.ere tired, Aaron drove Lo wards Castor A venue. Id. at 17:3-15. Angel continu ed to hear shots as they drove awav. Id While in the alleyway. he never heard the Defendant sa:1 anything. Id. at 18 6-9. None of the boys said anything to the Defendant. Id at 18:19-11. All oft re windows were u~· in their vehicle. Id at 18: 12-13.

/\t approximate y 10:JOpm. Philadelphia Police Officer Donycll Thomas was dispatched to Saine Christopher's Hospital in reference to a report of multiple gunshot victims. ?\:T. 10/24/13 at 90: 7-25. 91: 1-11. /\ radio call lt,r multiple gunshots near Castor Avenue and Luzerne Street 'vas contemporaneously issi ed. N.1·. 10/25/i 3 at i28:2-16. Officer Thomas

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testified that when he arrived at the front cnt ·,mce or the emergency room. he observed a blue Toyota Corolla covered .n bullet strikes and filled with "pools of blood." id. at 90: 15-'25. Officer Timothy Miller :,imilar}~, testified that the ve hicle had "multiple gunshot holes in the back window, passenger's sic e ofthe vehicle and front window. a large amount or blood in the backseat and some blood in the front scat." ,'d at 130:3-13.

Philadelphia Police Officer James Manin testified that at approximately l 0:30pm, he received a radio call for a report of gunshots in the area of Castor Avenue and Luzerne Street. N.T. 10/24/13 a 252:6-14. When he arrived at the scene. he smelled gunpowder in the alleyway. Id. at pp. 253-SL. Office r Martin left the scene and drove to Saint Christopher's l Iospital. Once there, he spoke ·.vith A,ff011 Marrero who str tcd that "he had driven tu that area of Castor and Luzerne because one or his friends was hav .ng a problem with a male know n as Benny Torres and that somebc dy shot at then) and he lclt somethinj; and drove ,rnay ... lei. at pp. :258~59.

Philadelohia Po ice Officer Timothy Stephan testified that when he arrived at the crime scene, he observed mul.iplc spent shell casings just inside of the alleyway in the rear or 4000 Neilson Street. \LT. I 0,28/13 at 95: 19-25. 1~/hilc securing the scene, he received a radio call for a person with a gun inside ofthe property a: 4030 Neilson Street. Once at that location. Officer Stephan was mr r by a Hispanic female. Ma ·ia Esquilin. and several juvenile children. including Benny Torres. 1./. at 96 l 0- l 9.

Officer "srian Slark or the Phi lade Ip 11a Crime Scene Unit tcsti ficd that two (2) copper jacket fragment, and 1e1 ( 10) 9 millimeter Luger fired cartridge casings (FCC) were collected from the rear driveway of 15 l l East Luzerr e Street. >J.T. J0/28/13 at 148:10-25: 151:3-14.

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One (I) Winchester 9 m] J lirncier Luger FCC was col leered near the garage door of 4032 Neilson Street. approxim nely seven (7) feet Irorn the Defendant 's garage. Id at pp. 13 7-38: 151 :3-14: 218:20-25.

During itspectioi orthe vehicle, one (1) 9 millimeter Luger FCC was recovered from the front passenger 'Cat. t\.~- 10/28113 at 153:11)-14. 166:19-23: 101:H)/13 al 57:7-12. Two (2) copper jacket th: grnents were recovered frorn under the front passenger seat. N.T. I 0/28114 at 195 :22-25, 196: -10. 13oth fragments had a x hite powder-like substance attached, consistent with having con- e in contact with glass. N.T. 1 OiJ0/13 at 56: 19-25. 57:7-'J.5: 58: 1-13.

Officer ~tark testified to the bullet holes on the vehicle. KT. 10/28113 at pp. 187-201.

The rear windshield anc backseat windows Jf the vehicle were tinted. id. at 153:5-14. The rest of the vehicle was not. Id The vehicle had six (6) bullet holes: one in the hood: one in the lower corner of the frcnt windshield on the passenger's side: two in the rear windshield: one in the right backseat \\ indow: and one in the right backseat vent window. The hole in the hood of the vehicle was angled tow.ird the steering wheel, id at 153: 18-25. Ihis indicated that the shot was fired from the right side olthe vehicle. id The hole in the Iront w indshield corresponded to a hole in the dashboard. H at pp. l 71 • 72. The hole in the lower right corner or the backseat window matched a hole near the shoulder a 'ca of the from passenger seal. Id at pp. 178- 79. Multiple strike marks were observed on the right side of the vehicle. id at p. 193.

Police C Ilicer Norman De Fields from the Firearms Identification Unit of the Philadelphia Police Dcpartm ent testified to the evidence recovered from the bodies. One ( l) bullet core and two (2) bullet jz ckets with while powder were recovered from Dante Luuo ·s brain. The white powder was crushed glass. ~.T 10/30/13 al 62:5-25. 63:~0-25. 64:1-22. lwo (2) full metal jacket bullets wuh white powder. blood, and tissue \\ ere recox ered from Joshua Soto· s right chest and left hu ncrus respectively. Id. al 6~: 17-25. 66: 1- I 3. 6 7: 1-6. One ( 1) bullet jacket was recovered from: avier Orlandi. s right back. and one ( l) bullet core with white powder, blood and tissue was recov ered from his left anterior neck. Id at 68: l 1-25, 69: 1-~5. 70: 1-10.

The Medical Examiner, Dr. Edwin Lieberman, testified to the findings of the postmortem examinations . Joshua Soto died of a gunsho wound to the right side of his back. N.T. 10/29/13 at 207:4-10. Based on the trajectory of the bullet, the business end of the gun would have been slightly heh ind l.im. off TO the right side, and aimed slightly down. Id. at 192: 17-25. /\ second gunshot wound o his humerus was observed, Id at 194:24-25. 195:2-9 . Javier Orlandi died as a result of a gunsl .ot wound 10 his. back. Id at 221 :25. :222:2. The business end of the gun would have been slightly behind him and off to the right side. Id at 117:2-11. Dante Lugo died as a result of a gunshot wou rd to his head. Id al 234:21-22. The business end of the gun would have been behind him, aimec forward. so that the bullet entered the back of his head and passed in a forward directic n. Id. al 233: 15-22.

Detective Sean .vlellon of the Philadelphia Police Homicide Unit. fugitive Squad testified that on January 11. 201 ), he received an arrest warrant for the Defendant. N.T. l 0/30113 at

94:17-25. The arrest wz rrant culminated in lhe development otsome information that the Defendant was staving 1t the Knights Inn ir Trev ose. Pennsylvania." Id at 92: 17-25. Detective. Mellon and United Stares Marshalls went t« the hotel. They knocked and announced their presence. The Lefendaut and a Hispanic female looked out the window of their room. Id at pp. 95-96. Detective Mello 1 entered the room. '\tier a brief struggle. the Defendant was taken into custody. The Hispanic female. later identif :xi as Carol Diaz. was also taken into custody. Id.

The Defendant presented a justification defense. The complaining \A itncsscs conceded that problems b ~tween · he KAB and ETl3 sartcd in the summer of 201 I. N .T. l 0/}9/13 ut pp.

9

34-35. Angel and Christan testified that in June 201 l, their friend Nico was jumped by Benny. his cousin J.R., s nd other members of the ETl3. N.T. 10/25(13 at pp. 161-7 L 10/29/13 al pp. 34- 42. On the day of that incident. Nico's mother drove some of the KJ\8 to the Dcfcndants home.' When they arrived, J.R. and other members .if the ETB were standing outside. lhc K/\B got out of their vehicle r nd the boys started to fistfight. N.T. 1 ll/25/13 at 166: 13-16. Christian and Angel testified that the fight erded when Maria Esquilin. the Defendant's wife and Benny's mother, came out of the .iouse s-vinging a 2-by-4. hi at pp. 40-41: 10/25i 13 at 168:3-15.

The Def ndant's wife testified on behalf of the defense. Ms. Esquilin testified that on the day of the June :!O 11 fight, she beard her neghbor scream her name. N.T. I Oi3 l/l3 at 41 :6-15. When she looke j outside towards Lycoming Street, she saw .T. R. surrounded by a group of people trying to tight hi n. There were .. more than twenty kids and adults." Id at 45:2-J. Ms. Esquilin yelled for .I.R. :Q run. She testified. "When l seen him [ .I.R. I run. he passed by me. 1 ran right behind hin. and all I sec was ali of these kids on top of al! of these porches lry1ing to hit my nephew (.1.R.] and one «Imy sons [Benny] was outside." kl. at 42:14<!0. The KAB followed J.R. lo Ms. Esquilins porch The boys continued to tight. Joshua hit Benny. Id at pp. 42-43: 84-85. Christian broke one of their windows. Id. at pp. 46-47. Ms. Esquilin testified: ·'J went up the steps. I got on die porer ... l grab the 2-by-4 and l started swingi ng <ll everybody on the porch .. ." Id at 45: 12-1 S. The Defendant "came ou and he tried to separate [the fight} ... he pushed the kids out from my porch and that is wnen rh« cops came." kl. at 47:12-L5.

Ms. Esq rilin further testified that she heard that on December 27. 2Ul L the KAB "were on Frie and T<wes<lale showing a gun, that they wanted to shoot m> son I Benny]." Id. al 53:2-5. This prompted Ivls. Esquilin to call Bennvs school. Id. at pp. J 26-27.

; Christian testificc that .losl ua. Angel, and he drove to the Defeudants home N.T. 10,'29 13 at 37:3· 1 l. 1\ngel testified that Dante. Joshua. Javier, Christian. Nico, Joseph and he d:·m·l' lo the Defendant's home, N.'}. 10125/13 at 162:3-25. .

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Ihc Defendant wok the stand at trial He testi tied about multiple incidents in ml ving Benny and the l</\B. Or the day of the June 2011 light. the Defendant. his wife. and other family members were s tting or their porch when a neighbor yelled that J.R. was being chased by a group of people. N.T. 1:/1113 at 58:11-12. The Defendant testified; "[Bleiwccn 10 and 12 kids .. . four ( 4) older ,1 'omen ... [and] a couple ol Ier males" "started overcrowding the front of our house. to the ste )S. neig.ibors porches. next-door ncighhors porch. jumping on their porch, trying to get intc our ho isc to hit the kids ar d things like that." Id. at 59:7-24. The Defendant went into their house ,:111:.1 told his stepchildren to stay inside. Id at 60:3-9. When he came back outside, Ms. Esc uilin hz d "a 2-by-4 and started swinging." Id at 60: I 0-19. The tight ended as the police arrived. Id at 60:20-24.

The Defendant testified that around .Iallowccn of 20 l l . he believed that the KAB shot their house with paintball guns. Id. at 64:5-14. After that incident, \!ls. Esquilin went to Benny's school to compl iin about Christian Nunez .. 'd. at 64: 19-24. For about a about a week-and-a-half to two weeks, t~ e Deter dant or his \\ ifc had to go every day to pick Benny up from school. id. at 65:4-14.

The Def endant testified that in Nove mher or December ol 20 I I: .. Benny told [Ms.

Esquilin] that the: was trying LO come LO Eric and Torresdale station where you get off the train at and the kids was trying to wait for him there. One of his friends and him seen one with a gun. a kid was trying to brandish a gun out to let them know they had guns and stuff like that." Id at 66:6-20.

The De 'cndant testified about the Innuary 10. 201:2 shooting. At approximately l Opm, the Defendant v-as smo cing a cigarette on his porch. Id al pp. 70-71. IIe observed a vehicle drive down Nd son Street towards Luzerne Street. The vehicle slowed clown when it reached his home. The back windows of the vehicle were tinted. id. at 73:25. 74:2-5. The Defendant assumed the pcri:on was a delivery driver or looking for parking. Id at pp. 71-72. The Defendant sat down in a chair on tt cir porch. The vchit le drove by his house and slowed down again. Id at 73:9-22. The Defendant testified: ·'After it goes by. probably like two tu three houses down. the front window gels roller down and sorneboc.y says something hut l didn't get to hear exactly what was said because 1 really wasn't paying no mind at the car." Id at 73: 15-22. The Defendant could not see if there were reorle in the vehicle, ld. at 74:6-!3.

The Defendant testified: ··1 finished my cigarette. 1 go back in the house, close the door.

lock the <loor because it is late at night. as usual. l sit there. start watching TV and probably about another three to live minutes. Benny tomes down the steps ... he looks out the window and he is on the phone \,;ith somebody. l don't know who he was talking to and then after that Benny leaves ... and then after that, [my stepson! Dominic comes down ... He looks out. I le opens the front door but he doesn't open the screen door to go outside to the porch ... and he just looks out the scrcer door and says these guys are coming >- I sec these guys me coming to get Benny again." id at 74:19-25, 75:2-14. After talking to Dominic. the Defendant .. put two and two together that is wh: the car was driving by so slowly going around the block ." Id at 75:2 l- 25; pp. 76-77. I he Defendant told Dominic to tell Ms. Esquilin. I le then went to gel his stepson, Daniel. who wa : outside in the alley behind their home. lei. at p. 76-79. Daniel went inside.

The Def endant walked "two or three houses down" the alley to borrow a gun from his friend. Droop. Ji. at pp. 79-80 .:' [TTe] got the gun off Droop and then went back in the house." Id. at 81 :3- 7. The l iefendant testi tied that the gun he borrowed was a black XD Spri ngficld compact 9 millimeter. Id at l l 9:6-'.24. The Defendant testified: ··My wife made it down to the basement. She is scrcamin ; to Daniel and all ofus tha: they arc try111g to kill my son. they arc trying to kill

Il

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my son and 1 told her. I said calm clown .... am going to go around and sec what's going on." Id at 81:9-15.

The Dcfc ndant testified: "I started v, rlking up the driveway. When I walked up the driveway. as socn as I g~t to the corner of my driveway. l didnt notice what was going on and as soon as J turned, the car was just directly right there and my first instinct. my reaction my intentions is from everyiody telling me the car is in the front of the house and I hav e no recollection that the car was in the back of the house, coming toward the back olrny driveway. So my first instiict, l was in shock. knowing the car was there because I had no idea what was going on, and my first reaction was to start shooting al the car." Id at 81:5-15. The Defendant repeatedly testif eel that his "first instinct wr s to start shooting nt the car." Id at 174: 17-22: 176: 15-20. In a ormal statement to police on January 12, '.Wl 2- the Defendant stated: ··As soon as I turned the a lcyway they was right there in a car. So my first reaction was to start shooting." Commonwealth's (CW; Exhibit, 11.

The Defendant conceded on cross-examination that the young males in the car did not produce a gun. l.nifc, or say anything to the Defendant Id at pp. l 7l-T2. Irrespective of this, the

Defendant immediately started shooting into the hood and lower front passenger side or their vehicle. Id at 1 ''2: I 7-2,l. He also conceded that when he shot in Lo their vehicle. he saw Joshua in

the front passcn gcr seat Id at 178:'.2-5. On direct examination. defense counsel asked: "When you saw that car. '"' hy did you pull it out'? ... I he Defendant responded: "Because I was fearful of not knowing wl at was going on or what their intention was of corning around to the back of my house. I didn't 1 now what was going on. When I seen the car. there was so many ofthem in there, I didn't know wh it they was going to do." Id at 84:9-16. "/\s soon as I seen the car, I pulled [the gun] out and directly began lo shoot at the car and everything happened in a span or probably nu more than eight seconds." Id at 84:22-25.

As their vehicleousscd the Defendar.t and drove out of the alleyway. the Defendant continued to shoot into their vehicle as the Defendant was "backing up ... id. at 86:3-12. During cross-examination by th: Commonwealth. the Defendant testified:

Q. Sir, d» you have any idea bow Mr, Lugo in the rem seat behind the driver was shot in the back Jf the head?

J\. No.

Q. Do ye u have any idea how Jade 1)rlandi was shot in the back w bile seated in the backseat. sir"

A. As I t card from the testimony. it was crowded in the backseat.

Q. Sir, y )U were firing into the backseat as the car was fleeing, werent you. sir?

A. Yes.

Q. Yes, :,-ou were shooting at the car as it was fleeing, weren't you. sir?

A. Yes.

Id. atpp.194-9:,.

The Def mdant recounted that after the shooting, he went back in the house and Droop took the gun off of him and reloaded it. The Defendant then went upstairs to grab his money and narcotics. I le came bacl: down, jumped in his sister-in-law' s car, and went to her house. He remained there .or a little while, and then letl to go lo the Knights Inn where he remained until his arrest. CW Exhibit, 23.

The Detendants wile testified abou. the shooting. Ms. Esquilin testified that Dominic told her that sot ie kids were there 10 fight Ecnny. N.T. I 0/~ 1 /13 at 60:2 !-25. When she looked

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Circulated 12/01/2015 02:38 PM

outside. she saw a black car in front or their house with the "window down \\ ith a gun out." hi. at 61 :8-12. Ms. Esquilin Ii rthcr testified that there was 3 whole hunch of kids on the corner of her house. Id. at 61: 18-22. ~ he started scream ing for Dominic and Benny not to go outside. She heard shots. She called '! l l and told them.·· lhcy are going to shoot my kids. They arc going to shoot my kids. l lurry up. They arc gl,i ng to d 11 my kids." Id at 63 :8-14.

Ms. Esquilin screamed for the lkkndant who was in the basement of their home. She testified that the Defendant exited their home Irorn the basement door with a black gun. id at pp.

64-65. Ms. Esqrilin testified that she called 911 before rile Defendant went outside." id. at p. 65.

The Defendant then retuned to their house and told her that he would be right back. The Defendant ncve: returned that evening. Id at pp. 66-67. Ms. 1-'.squilfn testified that the police came to their house ten '.10) minutes after tle Defendant left. id at 67:9-12.

Carol Diaz testified on behalf of the defense. Ms. Diaz stated that she lives on Castor Avenue behind I he Defe-ndants home. :'J.T. I 0/30/J 3 at pp. l 70-72. ln a statement to police. Ms.

Diaz stated that the Defendant is her boyfriend, hut that he is married. Id. at 180: l 2-21. The Defendant and she wou' d meet on her days off and get a room at a motel. Id at 20-23. On January 11, 20 I ), the Defendant called Ms. Dia? and asked if she could bring him food and cigarettes. id. at 174:6-'. 8. Ms. Diaz took a bus to the Defendant. She arrived al the Knights Inn no more than fifteen mi .iutcs before the police arrived. Id. at 176:8-20. Ms. Diaz testified that she learned about the shooting on the news. hi. ·lt 186: 19-25. However. in a statement to police, Ms.

Diaz stated that the Defendant told her ··1hai something happened at the corner of the house and

it involved a fig rt between his kids and sorr.c other kids. It was SLHnc kind or fighl over Facebook." Id ut 186: I 3-16.

~ The 911 transcrip.s reveal hat Ms. Esquilin culled 91 I approximate ly twenty-seven (27 J minutes after the first call co police dispatch reporting .~unshots. Id at pp. 176-~·,.

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Detective Jeffrey Burke of the Philadelphia Police Department testified that the Defendant wast rough! nto the homicide ur it by Detective Md Ion and the fugitive taskforce. N.T. 10/30/13 at 106:J l-15. The Defendant wax advised of his Miranda rights then gave a formal statement. Id. at pp. l08-27. The Defendant confessed that he shot and killed Javier Orlandi, Joshua Soro, and Dante Lugo. Id at pp. 118-19.

~l\ALYSJS

Issue I

In his Rt. le 1925(b) statement. the Defendant contends that there was insufficient evidence as a mutter or aw Lo convict him clFirst Degree Murder because there was no evidence that he had the specific premeditated intent tu kill. The Defendant i~ essentially asserting that the ComJT on weal th did not di sprove beyond a reasonable doubt his justi fication defense.

"There i.: suffici em evidence to sustain a conviction when the evidence admitted at trial, and all reasonable inferences drawn therefrr m .. viewed in the light most lavorable to the Commonwealth as verdict-winner, are sufficient to enable the fact-finder to conclude that the Commonwealth cstablis hcd all of the clements of the offense beyond a reasonable doubt." Com. v, Morales, 91 /i.Jd 80. 87 (Pa. 2014) (citing Cont. 1·.• \1ctrkmc111. 916 /\.2d 586. 597 (Po. 2007)). The Commonwculth 1111: y sustain its burden of proof "by means o lw holly circumstantial evidence." Morales, 91 A.3d al 87.

To susta u a conviction for first-degree murder, the Commonwealth must prove beyond a reasonable doul t that: (I) a human being was unlawfully killed; (2) the defendant was responsible for the killing: and (3) the defendant acted with malice and a specific intent Lo kill. Morales, 91 A.: d at 88: 18 Pa.CS. ~ 2502(a). The j udicially de, eloped phrase "specific intent"

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to kill may be used interchangeably with the statutory language "willful. deliberate. and premeditated .. tc ex press the same concept. ,:. '0111. ,,_ Simpson, 754 J\.2d l 264, 1269 (Pa. 2000 J. The requirement of premeditation is met whenever there is a conscious purpose to bring about death. Com. r. C 'Seara. 352 A.2d 30 (Pa. l 076). ln deciding whether to i11!1.:r specific intent, the jury should consider all relevant evidence, including the words and conduct ot' the defendant and the attending cir :um star ces. ( 'um. v Ash. J()4 A.2d -1- 79 { Pa. 1978). Circumstantial evidence can itself be sufficieit to prr-vc any clement or all of the clements of first-degree murder. Cam. v. Chamberlain. 3(1 A.3d 381. 394 (Pa.2011 ). Thus. the requisite specific intent to kill can be established through circ rmstantial evidence such as the use or a deadly weapon on a vital part of the victim's body. Cum. I'. Diamond, 83 A.3:1 I 19. 126 (Pa. 2013 ): Com. I'. Rega. 933 J\.2d 997. 1009 (Pa. 2007) See N. r. 11/5/13 at 193: 11-17.

Sclf-defe nse or defense of others is r.n affirmative defense to a charge of first-degree murder. Com. l'. Rivero. 983 J\.2d 1211. 12:'. I ( Pa. 2009}: Com. 1' .. \'i111111ons. 4 75 A2d 1310, 1313 (Pa. 1984) A claim olself-de lense or defense of others (justification) requires evidence establishing three elements: .. (a) [that the defendant] reasonably believed that be [or another] was in imminent danger of death or serious bodi.y injury and that it was necessary to use deadly force against the victi 11 to prevent such harm: (b) th:.11 the defendant \\US free from fault in provoking the difficulty which culminated in the slayir g: and (c) that the [defendant! did not violate any duty to retreat." Com. r. Mouuon. 53 A.3d 738, 740 (Pu 2012).

"Although the d rfend ant has no burden to prove self-defense ... before the defense is properly in issue, there ·nust be some evidence. from whatever source, Lo justify such a finding. Once the question is properly raised. the burden is upon the Cornrnouwealth Lo prove beyond a reasonable doubt that the defendant was not acring in [justifiable] self-defense" or defense of

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others. Mouzon, 53 A.3cl al 740 (citing Cum r. Black. J 76 A.2d 627, 630 (Pa. 1977 )). Deadly force is defined .is "[Ijorce which. under the circumstances in which it is used. is readily capable of causing death or scric us bodily injury." 13 Pa.C.S. § 50 l.

The Con monwcalth sustains its burden of negation if it proves any of the following beyond a reason ible doubt: .. that The l defendant J was not free from fault in provoking or continuing the d fficulr; which resulted in the slaying: that the [defendant] <lid not reasonably believe that [he] [or another] was in imminent danger of death or great bodily harm. and that it was necessary tc kill in order to save l him [self lor others J therefrom: or that the [ defendant J violated a duty l) retrea or avoid The danger." :\1011:::011. 53 /\ . Jd al 740-4 I ( citing Com. r. Bums, 416 A.2d 506. 5 )7 ( Pa. 1980) ). The Commc nwcalth need only disprove one of the elements in order to defeat a claim cf self-defense or dc.cnsc of others. Com. , .. Met'lain, 58 7 l\.2d 798. 804 (Pa. Super.), app. denied, 598 ;\.2d 993 (Pa. 1991).

Although the Commonwealth is required to disprove a claim or self-defense. ··a jury is not required to l elieve the testimony of the Icfcndant who raises the claim." Com:v. Miller, 634 A2d 614. 617 ()a. Super. 1993), app. denied .. 646 A.2d I l 77 (Pa. 1994 ). Moreover, where there is evidence fron I which a jury can reasonably infer malice. the Commonwealth has met its burden of proving bcyo id a reasonable doubt that the defendant did not act in self-defense or defense of others. Miltc.: 6.34 A2d at 617 (tiling Com. 1· Ilinchcliit«. 388 A.2<l I 068, I 071 (Pa. l 978)).

It is und spuied hat the Defendant s 101 and killed Joshua Soto. Javier Orlandi, and Dante Lugo who wen: unarmed and retreating. One could not Iind that the Defendant reasonably believed that he or his f'arnily were in danger or imminent death or serious bodily injury from the victims. The Defendant was most certainly ar fault for escalating the situation to one where he

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then fired a weapon. TIT s was a potential fistfight among unarmed teenagers. This adult Defendant introc.uced a weapon into a tcena;e dispute instead of defraying it, or at the least, keeping his family and l imsel r in his home and calling the police. Finally. not only did thi~ Defendant tail le retreat. but left his dwelling tu purposefully advance on the victims with a deadly weapon in hand. Aaron Marrero, Christian Nunez. Brandon J lernandcz. and Angel Rodriguez repeatedly testified that as soon as the Defendant saw their, chicle, he pulled the gun from his waistba id and ; tarted shooting. The y also testified that none or them brought a weapon to the fight: that Aaron never drove towards he Defendant: and that Aaron never tried to run the Defendant over.

Assuming arguendo that the Defenda 1t believed his family and he were in danger. the evidence was sufficient tJ support a finding that the Defendant was the initial aggressor. The Defendant obtained a loaded XD Springfield compact 9 millimeter front his friend, Droop. His front door was lo .kcd, Hts backdoor was sec .ired. I le did 11111 call 9 l l. N. T. 11 / [ /J 3 al pp. 155- 57. AH the evide rce including the Defendam 's statement show that the Defendant walked down the alley behind r is home, pulled a loaded gun from his waistband, aimed it at a car filled with young males. and tired m ultiplc rounds. Id ai 119:25, 120: l-24; 172:20-24. 178:2-5.

There was ample evidence to disprove the Defendanis claim that he was acting in self defense or defens ! of his family. The Defendant testified: "As soon as they seen me, they tried to take off" N.T. l 1/1/13 at J 7:1: 18-25. The Defendant continued to shoot into their vehicle as they fled. Id. at 180:23-25, . 18J:I9-23. 195:5-10: . J0/30/J3 al 86:3-7: Com. 1· Bullock: 948 i\.2d 818. 824 (Pa. Super. 2tl08) (e, idcnce sufficient to disprove self-defense where defendant shot victim while victim was running away): Com. ,. }'a,;i~[T 690 /\.2d 260, 264-65 (Pa. Super. l <>97) (evidence sufficient to di: prove self-defense where defendant was near his car and could have

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retreated in complete safety rather than shoot victim in the back as victim was running away). The Defendant ;: dmittcc that he saw Joshua in the front passenger seat as he shot into their vehicle. Id at 1: 8:2·5. Aaron was shot in th: back of his neck. The j\·fE concluded that the business end or· he Dclendants gun would rave been slightly behind Joshua. Javier. and Dante when they were shot. N.'!'. 10!29!13 at pp. I n-'.234. The ballistics evidence, crime scene analysis, and fin lings of the medical examir.er are consistent with the Defendant" s statement and the testimony at trial. Tlcrefore, the Defendants argument is without merit.

Issue II

The Defendant a lcges three instances ofprosecutorial misconduct. A prosecutor's comments do no amount to reversible error unless the "unavoidable effect or such comments would be to prejudice the jury. forming in th eir minds fixed bias and hostility toward the defendant so that they cc uld not weigh the evidence objccti vcly and render a true verdict." Chamberlain, 30 A.3d at 408.: See Com v. Chester. 587 A.2d 1367. 1378 (P:i. 1991) (holding that the defendant was not entitled 10 a new i.ial because certain remarks made by the prosecutor "were not a deliberate attempt to destroy the objectivity of I he fact finder. but merely summarized the E vidcncc presented at tria] with the oratorical flair permitted during argument"}.

The Defendant asserts that "the Comrnonwcalths closing- argument so inflamed the jury that they could not rende. · a fai r verdict where the Com monwea Ith· s attorney gave his personal opinion with respect to tl e guilt of the Defendant by calling him a liar ." There is no evidence in the trial record th u the District Attorney explicitly referred to the Defendant as a liar. The relevant portion or the Commonwealth 's closing concerned the contradictory testimony of Maria Esquilin. N.T. 10,31113 al pp. 6L 141. Ms. Esquilin testified that when she looked outside just before the shootir g, she saw a black car in th nt or their house with a gun out the window. N.T.

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10/31/13 at 61 :8-12. In her statement to police. Ms. Esquilin stated that when she looked outside. she did not see anyone. 'd. ar 141 :3- l 0. The Commonwealth argued in closing:

"Barreto gets up there and says that didn't go so well for my wife. J watched it. I sat here z nd J watched it. So when I take the stand, I better be a little more reasonable when J try to pull the wor l over people's eyes. Absurd. absolutely absurd. They are lying about guns. prior guns. It is an attempt to take your eye off the ball. Let's tal , about thm. Let· st; JI,; about an unreasonable belief' in "lclf-

defense." 1\1.T. 1 c/5113 at 116:2-l-25, l i7:2-12.

The trial court addressed this issue in camera. Id a: pp.163-65. furthermore. Pennsylvania courts have refused to a.vard a new trial under similar circumstances. ( ·om. ,·. Curpenta. 515 A.2d 531. 536 (Pa. 1986) (denying relier where the prosecutor referred lo the defendant as a "murderer" who "took the stand and tied"): ( 'oin. "· Jud, '.)78 i\.2d IO 15 (Pa. Super. 2009) (prosecutor's assertion that defendant lied did not warrant mistrial): see Cum. r. Hanible, 30 A..1d 426 (Pa. 2011).

The Defendant next claims "the Commonwealth improperly shifted the burden or proof the [sic] Defendant when he commented un the Dcfcndunts failure to call certain witnesses to

trial." See N.T. l l /5/l} a 129:9-25. 130: 1-2. Comprehensive opening and dosing instructions considered in coniunci ior with the maxim th, 1 "'the Iav, presumes the jury wi 11 tollow the instructions of the court" neutralize any potcr tial for prejudice. Rcg«. 9]3 A.2d al IO 16: Com. r. Brown, 786 A .2d 961, 971 (Pa.2001 ). The ju ·y was thoroughly instructed on the relevant lav and the Common-vealth s burden or proof. N .T. I 0:24/ 13 at pp. 11-26: I l ;5., 1 3 at 178:6-15. T!tc trial court fully ar d correctly charged the jury alter both sides closed. Id. at pp. 173-~32. In an abundance c r cautir n, the trial court explicitl'. addressed this issue:

The Cot rt: "You heard some argurr cnt by Mr. Conroy regarding ~1 witness.

Benny Torres, corumenting on him not testifying in this case. The burden is always 0.1 the Ccmmonwcahh .. and the Defense, you heard me say over and over again. ha i no burden to present any evidence. in the case .. .' id. at 2:28: 1- I 2.

Any possible prejudice that may have arisen in the case was cured by the trial courts instructions. Simrson, 7:;4 A2cl al 1272. The Dcfcndants .. failure to object to the instruction indicated his sati sfacrion with the instruction." Morris. 5 I 9 J\.2d [It 378. Moreover, even if the statements were .mproper. they did not have the unavoidable effect of prejudicing the jury. forming in their I uinds a fixed bias and hosril ity toward the Defendant. Chamberlain. 30 A.3d at 408. Thus, this issue fails.

Defendant lastly nsscrts the Commonwealth "mis-characterized [sic] evidence when he said that the Defe ndant s.rid that they deserved to be bul!ieu:· A review of the trial record fails ro support this conte ntion. Counsel may bl'. referring tu testimony evoked on cross-examination of the Defendant's wife. Specifically. that she admitted to hearing the Defendant say. "They want to act like men. I arr going o treat them like rnc n." N.T. I 0/31/13 at 186:~-I 0. The Commonwealth was referring to the Dcfe idants statement in his closing. in which he argued: .. Now. the Government is gc.. ing to say to you then he executed these young men. I le intentionally shot and tried to kill each «ne oftl.cse kids and that was his intent. lt was premeditated und that is what he wanted to do and he was going to treat them as men. that comment that he seized on to talk. about whatever that mcais .. :· N.T. I J/5/iJ at pp. 52-53. The Commonwealth was merely reiterating the De .endant s own statement ,.., nh oratorical flair in his argument. Therefore. the Defcndarus c la int of prosccutnrial misconduct Cai ls.

?. I

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co~,'CLUSION

Based on the foregoing, he judgment ol sentence of the trial court should be affirmed.

Rdse Marie DeFino-:\Jasta~i. J.