Com. v. Figueroa, J.

• Court: Superior Court of Pennsylvania
• Decided: June 25, 2015
• Docket: 1591 MDA 2014
• Status: Unpublished

Opinion

J-S31015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSUE FIGUEROA,

Appellant No. 1591 MDA 2014

Appeal from the Judgment of Sentence September 2, 2014 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002942-2012 CP-22-CR-0002962-2012

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 25, 2015

Appellant, Josue Figueroa, appeals nunc pro tunc from the judgment of

sentence of life imprisonment, imposed after a jury convicted him of second-

degree murder, robbery, criminal conspiracy to commit robbery, and false

reports to law enforcement authorities. On appeal, Appellant raises one

claim of ineffective assistance of trial counsel, and argues that the evidence

was insufficient to sustain his convictions. After careful review, we affirm.

Appellant and his co-defendant, Juan Serrano-Torres, were arrested

and charged with, inter alia, robbery, conspiracy, and criminal homicide after

they plotted to rob Francisco Oquendo-Nieves, who was shot and killed by

Serrano-Torres during the course of that robbery. Appellant and Serrano-

Torres were tried by a jury on August 6 and 7, 2013. At the conclusion J-S31015-15

thereof, Appellant was found guilty of the above-stated offenses.1 Appellant

was sentenced that same day to life imprisonment for his second-degree

murder conviction. He also received concurrent terms of five to ten years’

incarceration for his robbery conviction, five to ten years’ incarceration for

his criminal conspiracy conviction, and one to two years’ incarceration for his

false reports conviction.

Appellant filed a timely notice of appeal. However, Appellant’s counsel

did not timely file a docketing statement as required by Pa.R.A.P. 3517.

Accordingly, on October 31, 2013, this Court issued a per curiam order

dismissing Appellant’s appeal.

Appellant filed a timely pro se petition for relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging, inter alia,

that his appellate counsel was ineffective for allowing his direct appeal to be

dismissed. Appellant sought the reinstatement of his direct appeal rights

nunc pro tunc. The PCRA court appointed counsel, who filed an amended

petition on Appellant’s behalf. On September 2, 2014, the PCRA court

issued an order reinstating Appellant’s direct appeal rights. Appellant, who

is still represented by his post-conviction counsel, filed a nunc pro tunc

notice of appeal on September 22, 2014. He then timely complied with the

____________________________________________

1 Serrano-Torres was also convicted of second-degree murder, robbery, criminal conspiracy to commit robbery, and carrying firearm without a license.

-2- J-S31015-15

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, he raises two issues for our review:

1. Whether trial counsel was ineffective in his representation of [] Appellant?

2. Whether the Commonwealth failed to provide sufficient evidence at trial to establish each element of the crimes?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

In Appellant’s first issue, he alleges that his trial counsel was

ineffective for failing to call witnesses on his behalf. We cannot review

Appellant’s claim, as this is his direct appeal. In Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that,

generally, “claims of ineffective assistance of counsel are to be deferred to

PCRA review; trial courts should not entertain claims of ineffectiveness upon

post-verdict motions; and such claims should not be reviewed upon direct

appeal.” Holmes, 79 A.3d at 576. We acknowledge that the Holmes Court

created two limited exceptions to Grant: first, for “extraordinary circumstances,” [Holmes, 79 A.3d] at 577, “where the trial court, in the exercise of its discretion, determines that a claim (or claims) of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted,” id.; and, second, for “good cause,” permitting review of “multiple, and indeed comprehensive, ineffectiveness claims if such review is accompanied by a waiver of PCRA rights appropriately tailored ...,” id. at 578.

Commonwealth v. Turner, 80 A.3d 754, 763 n.7 (Pa. 2013).

-3- J-S31015-15

Here, Appellant did not raise his claim of trial counsel’s ineffectiveness

until he filed his Rule 1925(b) statement; therefore, the trial court did not

have the opportunity to determine if his assertion “is both meritorious and

apparent from the record so that immediate consideration and relief is

warranted....” Holmes, 79 A.3d at 577. Additionally, there is no indication

in the record that Appellant waived his PCRA rights. Accordingly, Appellant

must wait to raise his claim of trial counsel’s ineffectiveness until PCRA

review.

In Appellant’s second issue, he argues that the Commonwealth did not

present sufficient evidence to sustain his convictions.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Caban, 60 A.3d 120, 132-133 (Pa. Super 2012)

(quoting Commonwealth v. Quel, 27 A.3d 1033, 1037-1038 (Pa. Super.

-4- J-S31015-15

2011)).

In the present case, we begin by noting that in Appellant’s statement

of the issue, he claims to be challenging the sufficiency of the evidence to

sustain all of his convictions. However, his discussion involves only the

adequacy of the evidence to support his conviction of second-degree

murder. Specifically, Appellant contends that “no witness identified [him] as

the shooter/killer[,]” and “there was no evidence or testimony provided at

trial that proved [] Appellant knew or conspired with his co-defendant to

commit the crime of homicide.” Appellant’s Brief at 13. While Appellant

acknowledges that he “admitted that he knew that [there] was going to be a

robbery,” he argues that his conviction for second-degree murder cannot

stand because he “never indicated that he knew that his co-defendant was

going to kill the victim.” Id. at 14.

Appellant disregards the “basic principle of conspirator liability, that

once there is evidence of the presence of a conspiracy, the conspirators are

liable for the acts of co-conspirators committed in furtherance of the

conspiracy.” Commonwealth v. Stocker, 622 A.2d 333, 342 (Pa. Super.

1993) (citing Commonwealth v. Thomas, 189 A.2d 255, 258 (Pa. 1963)).

Here, the trial court provides a detailed summation of the evidence

presented at Appellant’s trial, which Appellant does not dispute. See Trial

Court Opinion, 12/1/14, at 2-19. We need not reproduce the court’s factual

recitation herein. Instead, we rely on that portion of the trial court’s opinion

-5- J-S31015-15

to conclude that the Commonwealth’s evidence was more than sufficient to

prove that Appellant conspired with Serrano-Torres to rob the victim.

Because both Appellant and Serrano-Torres admitted that Serrano-Torres

shot and killed the victim in furtherance of that conspiracy, Appellant is

liable for the murder of the victim. Accordingly, Appellant’s conviction for

second-degree murder is supported by sufficient evidence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/25/2015

-6- . ./

Circulated 06/08/2015 03:09 PM

THE COMMONWEAL TH OF : IN THE COURT OF COMMON PLEAS .. PENNSYLVANIA : DAUPHIN COUNTY, PENNSYLVANIA . . . . : TRIAL NO.: 2962 CR 2012;'2942 CR 2012 v. : SUPERIOR NO.: 1591 MDA 2014

. . r-:» JOSUE FIGUEROA ·: CRIMINAL MATTER ·~· ('') . ·• ).;· c- r- r,1 ··;J :::]c~. ·· .. ~l··~ .. •.;i _,, :;:., ~, ;':

.fri;::- . .T. ... ..;.;;-~·c.:(" ~-?ji:~-: r":' .... TRIAL COURT MEMORANDUM OPiNION PURSUANT ro'" c_.: PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a) ·.-.": l.D Ul 0 .. · Presently before the Superior Court of Pennsylvania is the direct appeal of Josue

Figueroa (hereinafter "Appellant"). ·

Procedural History . . At docket 2962 CR 2012, Appellant was charged with Criminal Homicide, Robbery,

Conspiracy and Firearms Not to be Carried Without a License. ,

At docket 2942 CR 2012, Appellant was charged with False Reports.

From August 6, 2013, · through August 7, 2013, a jury trial· was held. On August 7, 2013,

Appellant was found guilty of all -charges except for Firearms Not to be Carried Without a

License which was withdrawn. He was immediately sentenced as follows:

At docket 2962 CR 2012:

Count 1 - Criminal Homicide/ Second Degree Murder - Life in a state . correctional institution, a fifty dollars. ($50) fine plus court costs; Count 2 - Robbery~ Five (5) to ten (10) years in a state correctional . institution, fifty dollars ($50) fine plus court costs, to run · concurrent to Count 1 ; and Count 3 - Criminal Conspiracy - Five (5) to ten (10) years in a state . correctional institution, fifty dollars ($50) fine plus court costs, to run concurrent with Count 2. · ·

1· Circulated 06/08/2015 03:09 PM

At docket 2942 CR 2012:

Count 1 - False Reports - One (1) to two (2) years in a state correctional institution, a fifty dollars ($50) · fine, plus court costs to run concurrent to Count I at docket 2962 CR 2012.

Appellant was granted time credit from April 13, 2012, to August 7, 2013. Further, Bryan M.

McQuillan, Esq., Appellant's trial counsel, was appointed to continue representation on appeal.

Appellant filed . a Notice of Appeal with the Superior Court of Pennsylvania on

September 9, 2013. This Court directed Appellant to file of record a concise statement of errors

to be complained of on appeal. Appellant did not comply and thus his original .appeal was

waived.

On July 8, 2014, Appellant filed a PCRA and Attorney Jennifer Tobias· Esq., was

appointed his PCRA counsel. The PCRA was ·granted and his appellate rights were reinstated

nunc pro tune on September 2, 2014. He was then directed to file of record a concise statement

of errors to be complained of on appeal. Appellant timely complied with that order on October

15, 20 I 4; however, counsel indicated that she had not had time to fully revi~~v the trial transcript

so she was granted an additional thirty days from October 27,2014, to file an amended statement

of matters.

Factual Background .

Tes'timony Jodeci Saunders:

On April 12, 2012, Jodeci Saunders (hereinafter "Ms. Saunders") was living in an

apartment located at 1312 Derry Street, Harrisburg, with her daughter. (N.T. 18-19}. At

approximately 7:00 p.m., she left her apartment with her daughter, walked out the back door into

a courtyard, through a gate, and entered the parking area. (N.T. 20-22, 24, 28, 35). In the

. courtyard area, she saw two light skinned Hispanic males smoking; one man was sitting at a

2 , . Circulated 06/08/2015 03:09 PM

picnic table and the other was standing near the gate. (N.T. 26-27, 29, 35). She took note to

their presence because it is not common to see people in that area. {N.T. 28, 35, 46). The man

near the gate followed her out to the other side ofthe gate. (N.T. 30). Upon reaching her vehicle

in the parking area, she put her child in her car seat and then went to the trunk to ~et out a _diaper.

{N.T. 29). She changed her daughter's diaper in the backseat and then crawled to the front of the

car. (N.T. 29-30). Ms. Saunders was acting cautiouslybecause the man who followed her out of

the gate was now on a cell phone pacing back and forth behind her vehicle. (N.T. 30-33).

While in the front seat, she looked to see why the man followed her out to the parking

area. (N.T. 30-32). At that point, Ms. Saunders· saw another car pull up. (N.T. 32-33). There

were two people inside the vehicle; a male and a female. (N.T. 39, 44, 66-67, 73) .. The female

stayed in the car. (N.T. 39). Meanwhile, the man from the vehicle, a heavier Hispanic, met with

the man who followed her outside the gate. (N.T. 36-38). They were talking and exchanged

something. (N.T. 36, 38). Ms. Saunders believed it was a drug deal because that area is known

for such activity. (N.T. 36, 38). Meanwhile.. she noticed the gate opened, the. man that . was

sitting at the picnic table came out of the gate, and then he ducked. (N.T. 40). He began

creeping around the vehicles in the parking area. _(N.T. 41). The man interacting directly with

the man from the vehicle said something as the man from the vehicle was walking away. (N.T.

39-42). He reacted and looked back. (N.T. 39-42). Once he loo.ked back, he got shot. (N.T. 43,

45, 67-68): The shot came from where the .man creeping around was located. (N.T. 43).

However, she did not see anyone with a gun. (N.T. 76).

After the victim was shot, the man ·involved in the hand-to-hand interaction with the

victim began searching the victim's pockets and taking materials out .. (N.T. 44-45). Ms.

Saunders began exiting the parking area. (N.T. 46-47, 73-76). She stopped in the middle of the

3 Circulated 06/08/2015 03:09 PM

street and looked back to see ifthe victim got up, but he did not move. (N.T. 49, 53). However,

she saw the man that was creeping around the vehicles was walking towards the body. (N.T. 49,

753, 5) . Ms. Saunders called the police. (N.T. 49, 75). Ms. Saunders identified the Defendants ; in court as the two men she saw in the courtyard area that day. (N.T. 51).

Testiniony of Veronica Ortiz:

In April of 2012, Veronica Ortiz (hereinafter 11Ms. Ortiz") was living at 119 South 14th

Street with Renee Velazquez (hereinafter "Mr. Velazquez"), her fiance, Appellant, a.k.a.

"Minor." (N.T: 77-79, 85). In the early afternoon of April 12,· 2012, she saw Appellant in .

possession of a handgun. (N.T. 85-86). He was putting the gun in his pants. (N.T. 87-88). . . Later that day, she was home when Appellant and his friend that she did.not know came

over. (N.T. 79-80-.8"1, 98). Ms. Ortiz was in the kitchen washing dishes while the two men were

'speaking in the living room. (N.T. 8t-8i). The.men were talking in Spanish about committing a . . robbery because they needed money, but they did not mention a particular victim or particular

plans. (N.T. 82-83). Appellant. first mentioned the idea of a robbery. (N.T. 83). A few days

earlier, Ms. Ortiz's fiance took a picture of himself with a handgun in her apartment.. (N.T. 89).

Appellant was the photographer that day. (N.T. 90). The handgun that she saw Appellant in

possession of looked similar to the one in the picture. (N.T. 91). After about twenty minutes, the

men left theresidence together. (N.T. 86, 97). · She was under the influence of heroin at the time.

(N.T. 96-99). Appellant came back to the house around 8:00 p.m. (N.T. 86,.97). He was acting

nervous and claimed to be the victim of a robbery. (N.T. 87). He was· wearing different clothes

then when she saw him earlier that day. (N.T. 87-88).

Ms.Ortiz identified a picture of Mr. Velasquez holding a gun while in the entrance of her

bedroom. (N.T. 89-90). The picture was taken about three days before she saw Appellant with

4 't Circulated 06/08/2015 03:09 PM

the gun. · (N.T. 89). Appellant took the picture and then texted the image to her phone. (N.T.

90). The gun in the picture and the gun she saw Appellant in possession of looked similar. (N .T.

91).

On April 17, 2012, she identified Appellant as one of the individuals she overheard

planning the robbery. (N.T. 89,.91-92). On April 18, 2012, she identified Mr. Serrano-Torres as

the person who-was planning the robbery with Appellant, (N.T. 93-95). ·

Testimony of Wanda Baez-Lugo:

In April of 2012, Wanda Baez-Lugo (hereinafter "Ms. Baez-Lugo") lived at 1240 Market

Street with her two children. (N.T. 101-102, 111). She was friends with Juan Serrano-Torres

(hereinafter "Mr. -Serrano-Torres''), the co-defendant.· (N.T. 102, 113). One morning in April of

2012, Mr. Serrano-Torres called requesting a ride to the airport .. (N.T .. 114). He told her he was

going to Puerto Rico for a few· days, but did not explain why. (N .T. 104-109). She drove him to

· the airport, but he could not get a ticket. (N.T. 114). As a result, they went back to her

residence. (N.T. 114)'. While there, he told her that he had killed someone. (N.T. l 14).

Specifically, he revealed that he robbed someone, taken money, and shot him once .. (N.°T. I 03,

_105-109, 112, 114, 118, 125-126). He seemednormal and calm while discussing these events.

(N.'r, 103, 1.05-109, .112, U4, .118, 125-126). She did not believe him because she thought he

was harmless. (N.T. 114). He requested to sleep at her house that night. (N.T. 102-103, 111,

113). From the time they arrived back at her residence from the airport until April 19, 2012, he

did not leave the house. (N.T. 111, 114).

'On April 19, 2012, the police arrived looking for Mr. Serrano-Torres. (N.T. 104, 115-

116). She informed he was inside and provided police with consent to enter the house. (N.T.

I 04). At that point, the police retrieved Mr. Serrano-Torres from thehome, (N.T. 105).

5 Circulated 06/08/2015 03:09 PM

Testimony of Jacqueline Arroyo:

Jacqueline Arroyo (hereinafter "Ms. Arroyo") was friends with Mr. Serrano-Torres.

(N.T. I 27-128, 140). Mr. Serrano-Torres referred to Ms. Arroyo as his wife, but they were not actual.ly married. (N.T. 141). By April of 2012, Mr. Serrano-Torres had been living with Ms.

Arroyo at 218 ~rescent Street in Harrisburg for two to three months. (N.T: 128-129, 133, 140-

141). On April 12, 2012, she saw him on the comer of 13th and Derry Streets with another man

she knew by the nickname "Minor." (N.T. 12?-130). She picked them up and drove them to

PriceRite to buy food around 11 :00 p.m. (N.'T. 13 0-132). Afterwards, she took Minor to a

residence located around 13th and Derry Streets. (N.T. 132-133). Mr. Serrano-Torres went back

to her residence. (N.T. 133). Mr. Serrano-Torres left her home later that day around 3:30 p.m. . . (N.T. 133-134, 142). He told her he was going to take some Eriglish classes required by parole;

(N.T. 142). She did not see him again until 10:.00 to 10:30 p.m. that night after she came home

from church. (N.T. 133-135, 141-142). Normally, Mr. Serrano-Torres attends church with her.

(N.T. 142). At that time, she noticed he was wearing different clothes and the clothes he had on

earlier in the day were on the floor. (N.T. 134-.135, 142-143). She believes he had come home

while she was at church and changed his clothes. (N.T. 143). H~ was acting nervous. (N.T.

135). He told h~r that whatever happens he loves her, (N.T. 136, 143-144).

Eventually, she heard about the events of April 12, 2012, through other people. (N.T.

136, 144-145). She confronted Mr. Serrano-Torres and he explained that they were trying to rob

a guy and because he ran, he shot him. (N.T. 136-138, 142-144). Furthermore, Mr. Serrano-

Torres told her they took five bundl~s of heroin and about $500 from the victim. (N.T. l'.}8-139).

The victim was his ex-girlfriends' new boyfriend. (N.T. 145). Ms. Arroyo asked him to leave

her house. (N.T. 138).

6 Circulated 06/08/2015 03:09 PM

On April 19, 2012, the police came to her house looking for Mr. Serrano-Torres. (N.T.

139). They took the clothes he left on the floor for evidence. (N.T. 143). She identified Mr.

Serrano-Torres as the individual who admitted to the robbery and shooting. (N.T. 140).

Testimony of Elizabeth Lopez:

In April of 201t Elizabeth Lopez (hereinafter "Ms. Lopez") was residing at 14.46 Market

Street, Harrisburg. (N.T. 146). She considered Mr. Serrano-Torres an acquaintance and owed

him money. (N :T. 146, 151 ). Shortly after April 12, 2012, he contacted her requesting money to

buy a ticket to Puerto Rico because his mother was very ill. (N.T. 146-147). She did not give . . him money. (N.T. 147). Again on Tuesday, April 17, 2012, he came to her house to ask her for

money to buy a ticket. (N.T. 147-148, 152). . He was in a hurry and acting desperate and

nervous. (N.T. 149, 153). Mr. Serrano-Torres revealed to Ms. Lopez he killed someone in the

midst of robbing the person. (N.T. 148-150, 152). Mr. Serrano-Torres was not at her house for

more than anhour and she.gave him $200. (N.T. 152-153).

Testimony of Detective Josegh A. Zimmerman:

Joseph A. Zimmerman (hereinafter "Detective Zimmerman") has been employed by the

Harrisburg police department as a detective for sixteen years, but has worked for the police

. department for a total of twenty-one years. (N.T. 154). On April 12, 2012, he was assigned a

shooting as the lead investigator. (N.T. 154-155, 189-190). When he arrived at the 1300 block

of Thompson Street in Harrisburg, there was a crime scene already established. (N.T. 155, 190).

However, the victim had already been transported to the hospital. (N.T. 155, 161, 190). As far

as evidence, he saw a hat laying at the scene and marks that appeared to be made with blood as if

someone was dragged. (N.T. 159-161). Detective Zimmerman found a shell casing from a gun

7 ·1 Circulated 06/08/2015 03:09 PM

that was collected by forensics. (N.T. 159-160). Additionally, forensics found cigarette butts by

a gate area. (N.T. 161).

Thereafter, Detective Zimmerman proceeded to the hospital. (N.T. 161). The victim,

Francisco Oquendo-Nieves (hereinafter "Mr. Oquendo-Nieves and/or victim"), was deceased by

the time Detective Zimmerman arrived. (N.T. 162). Detective Zimmerman observed Mr.

'Oquendo-Nieves laying face up with an injury/ bullet wound on his chest. (N.T. 162). While at

the hospital, Detective Zimmerman made contact with Keyla Soto (hereinafter "Ms. Soto"), the

victim's girlfriend.· (N.T. 164, 192, 196-198). Based on the information provided by Ms. Soto,

Appellant became a potential witness. (N.T. 164). Thus, Detective Rivera called Appellant and'

requested he come to the police station. (N.T. 164, 195).

On April 13, 2012, Detective Zimmerman was present when Appellant . voluntarily. . appeared at the Harrisburg police station in response to Detective Rivera's calls. :(N.T. 165, 169-

171 ). Upon arrival, Appellant was escorted up to CID conference room to be interviewed. (N .T.

165-166). Appellant appeared· cooperative. (N; T. 166-167). Appellant spoke English, but he

was more comfortable speaking Spanish. (N.T. 167). Appellant agreed to take police. to the

shooter. (N .T. 167-168). As a result, the 'police had their first suspect: Carlos Mendez

(hereinafter. ''Mr. Mendez"). (N.T. 168, 170). The policeconducted an investigation regarding

Mr. Mendez's possible involvement and eventually he was cleared of any wrongdoing. (N.T.

168-169, 171).

On the morning of April 19, 2012, Detective Zimmerman was present when the police

went looking for Mr. Serrano-Torres at Ms. Arroyo's residence. (N .T·. 172, 193-194, 199).

Based on information discovered there, the police proceed to the residence Ms. Baez-Lugo

8 Circulated 06/08/2015 03:09 PM

where Mr. Serrano-Torres was apprehended. '(N,T. 172-173, 194, 199). Further, clothing

belonging to Mr. Serrano-Torres was obtained from said residence. (N.T. 194).

Later that day, Mr. Serrano-Torres wasin the booking area when Detective Zimmerman

received a call from Lieutenant Capello informing that Mr. Serrano-Torres and Appellant were

screaming back and forth at one another in Spanish. (N.T. 174-175). As a result, Detective

Zimmerman and Detective Rivera went down to the booking area. (N.T. 175). Detective Rivera

began to take notes. (N.T. 175-176). After some time passed, Detective Rivera revealed to the

men that he had been listening to their conversation. (N.T. 176). Later that evening, Detective

Zimmerman sat in on a statement provided by Mr. Serrano-Torres. (N.T. 177-,178).

Detective Zimmerman secured a warrant to obtain swabs of the inside of Mr. Serrano-

Torres and Appellant's mouths for DNA testing. (N.T. 186-187, 196). He had the swabs sealed

in an evidence bag and given tothe Pennsylvania State Police for testing. (N.T. 187-188).

· Testimony of Wayne Kenneth Ross:

Wayne Kenneth Ross, M.D:, (hereinafter "Dr. Ross") is a forensics pathologist for the

Dauphin County Coroner's office. (N.T. 204; 206). Specifically, he performs autopsies to

determine the actual cause of death. (N.T. 204-205). He has worked as a forensic pathologist

for thirty years and has been involved in over ten thousand _autopsies. (N.T. 205). Dr. Ross

qualified and testified as an expert in this case. (N.T. 206-207).

On April 13, 2012, Dr. Ross performed an autopsy on the body of Mr. Oquendo-Nieves. ,. (N .T. 208-209, 215). He observed a large gunshot wound to Mr. Oquendo-Nieves's left back.

(N. T. 209-210). There was no evidence of soot or gunshot residue on the clothing or the body.

(N.T. 210) Thus, it was determined to be a distant gunshot wound, meaning the shot was fired

three or more feet away from the victim. (N.T. 210). The bullet entered the left mid-back region

9 Circulated 06/08/2015 03:09 PM

and proceeded in a back-to-front, left-to-right, and upward direction. (N.T. 210-211, 216-217).

There was no exit wound. (N.T. 211 ). Dr. Ross explained that the bullet created a significant

acute angle going upward, which is consistent with the victim possibly running away or moving

away from the shooter. (N.T. 212-213, 217). Furthermore, the bullet traveled through numerous

vital organs, such as the left kidney, spleen, upward though the esophagus, and then through the

heart. (N.T. 213). · The victim would have immediately bled through those vital areas. (N.T.

213). A person would have at least ten to fifteen seconds of oxygenated blood in the brain if the

heart is cut off in this manner, (N.T. 213-214).

An x-ray revealed a bullet in the victim's upper right chest, which was recovered and tum

over to the Harrisburg Bureau of Police. (N.T. 209-211). Finally, there were abrasions to the

knees, scrapes on one ankle, and a scrape to his elbow. (N.T. 209). Dr. Ross explained that

these are called friction abrasions consistent with someone moving and then falling down on

macadam. (N.T. 209, 214-216). Said injuries_would also be consistent with b~ing dragged on

pavement or concrete. (N.T. 216). Dr. Ross determined that the gunshot wound was the fatal

injury that killed the victim. (N.T. 214). Dr. Ross opined within a reasonable degree of medical

certainty that the manner of death was a homicide. (N.T. 21~-215).

Detective Karen Lyda:

Detective Karen Lyda (hereinafter "Detective Lyda") is a forensic investigator for the

Harrisburg Bureau of Police- forensic section since September of 2003. (N.T. 219-220). Her

primary responsibilities are to photograph crimes scenes, collect evidence, and process evidence.

(N.T. 220). On April 12, 2012, she was called out to the 1300 block of Derry Street. (N.T. 220).

She identified three cigarette butts and a .40 caliber shell casing. . (N.T. 221-224, . 226-227, . 229).

Said shell casing was tested for fingerprints, but none were found; which is common on this type

10 Circulated 06/08/2015 03:09 PM

of item. (N.T. 250-252). The shell casings .and the cigarette butts were forwarded to 'the

Pennsylvania State Police. (N .T. 229, 231-232). In order to get ballistics testing, the police need

the gun to compare with the shell casing. (N.T. 230). In this case, the gun was never recovered.

(N.T. 230). Near a vehicl_e in the parking lot, the police found a blood smear on the ground,

blood spatter, and a baseball hat. (N.T. 222-227). It was later determined that the baseball hat

belonged to 'the victim.' (N.T. 225). The picnic (able was not tested for fingerprints. (N.T. 251).

Detective Lyda went to Harrisburg Hospital where she observed a black Honda parked at

the emergency room entrance with crime scene tape around it. (N.T. 233). Detective Lyda took. . . . . . photographs of the car. (N.T. 233). She observed a cell phone and wallet on front passenger's

seat. (N.T. 233). · Furthermore, she found blood on the door and flooring, two unused clear .

Zip1oc baggies with nothing inside them, a pair of large blue denim shorts· with blood on them

previously worn by the victim, and a cell phone. (N.T. 233-236, 245). Inside the wallet were.

two Pennsylvania identifications for Mr. Oquendo-Nives and Ms. Soto. (N.T. 234). The car was

seized and taken to the Harrisburg Bureau of Police for further processing. (N.T. 236).

Detective Lyda attended the autopsy on April 13, 2012. (N.T. 241). The police collected

an expanded projectile from the victim, clothing items, a wristwatch, two packets of heroin, and

a skeleton key. (N.T. 241, 244). The heroin and the key were within the flap of his underwear.

(N.T. 241, 244). It is common for drug users and/or dealers to hide drugs in various parts of

their clothing. (N.T. 242). The two packets tested positive for heroin. (N.T. 243-244).

On April 13, 2012, she conducted a search at 1614 State Street, the residence of Mr.

Oquendo-Nives. (N.T. 245). At said location, they found items that would be indicative of drug

sales. (N.T. 245-247). Finally, Mr. Serrano-Torres did not possess a valid license to carry a

firearm at the time.of this incident. (N.T. 252-253).

11 Circulated 06/08/2015 03:09 PM

Testimony of Detective Victor Rivera:

· Detective Victor Rivera (hereinafter "Detective Rivera") is employed by the Harrisburg

City Police in the Internal Affairs Division. (N.T. 254). He began working forthe Harrisburg

Bureau of Police in 1987. (N.T. 254, 373-374). He was promoted to the Detective Bureau .in

mid-I 990. (N.T. 254-255). As a result, he has been involved in about t_wo hundr~ homicide

investigations; over thirty of which as lead detective. (N.T. 255). In this case, Detective Rivera

took a lead role because of his ability to speak fluent Spanish. (N.T. 256, 263-264).

He spoke with Ms. Saunders, who picked out Appellant; a.k.a. "Flaco" and "Minor," as

resembling the individual who was talking to the victim at the time of the shooting . .(N.T. 256-

259). He received Appellant's contact information from Ms. Soto. (N.T. 374-375). Thereafter,

Detective Rivera contacted Appellant via phone. (N.T. 257, 259-260). Detective Rivera

requested he come to the police station to assist the police with the investigation. (N.T. 260,

375). Appellant expressed concern for retaliation. (N.T. 260-261, 376, 379-380). 'Eventually,

Detective Rivera and Detective Zimmerman met Appellant in the lobby of the police station.

(N.T. 261-262). Appellant appeared nervous and concerned, but cooperative. (N.T. 262, 376-

377). Further, he did not appear under the influence of anything. (N .T. 262).

Around 9:05 p.m., Detective Rivera sat down with Appellant in the conference room.

(N.T. 263). It was immediately apparent that Appellant's Spanish was better than his English, so

the conversation· immediately turned to Spanish. (N.T. 263-264)'. Detective Rivera explained

that police knew Appellant was standing next to the victim at the time of the homicide. (N .T.

264). As a result, the police hoped Appellant could assist them in identifying the shooter. (N.T.

264-265). Detective Rivera informed Appellant that he was not under arrest and he was free to

leave if he so desired. (N.T. 265).

12 I' Circulated 06/08/2015 03:09 PM

Appellant claimed the person ·who committed the homicide was Bob 'or Barber. (N.T. . . 265-266). At the time they met with the victim.for a heroin transaction, he was not aware that . . Bob/Barber was' going to shoot or rob him. (N.T. 266, 270-271). Appellant directed the police

to 328 South 16th Street as Bob/Barber's residence. (N.T. 267). As the police drove past the

address with Appellant, an individual came out onto the porch that Appellant- identified as

Bob/Barber. (N.T.· 267-268, 273). At that point, Detective Rivera detained said individual:

Carlos Mendez (hereinafter "Mr. Mendez"). (N.T. 268, 378). Mr. Mendez was transported to

· base and Appellant again identified him as the person who shot the victim. (N.T. 268-269, 270-

273, 378). However, an investigation of Mr. Mendez lead the police to conclu~e that he could

not have been involved in this crime. (N.T. 271, ;273, 277, 378-379).

On April 14, 2012, the police obtain consent to search Appellant's cell phone. (N.T. 273-

274). On his phone, the police found two pictures: orie picture depicted Appellant holding· a

semi-automatic handgun in his right hand and the second picture was of an individual, at the time

not yet identified, also holding the gun. (N.T, 275-277). Furthermore, the police provided

Appellant with a map upon which he drew where he was standing, where the victim was

standing, and where the shooter was located .. (N.T. 280-281). While explaining the map,

Appellant stated that while he was dealing with the victim, "Bob" came out from the courtyard

area and shot the victim. (N.T. 281-282). Thereafter, Appellant helped to get the body to the

vehicle and transported to Harrisburg hospital. (N.T. 282). Upon arrival .at the hospital,

Appellant exited the vehicle and walked away, (N.T. 282). Furthermore, Appellant admitted he

lied about Mr. Mendez. (N.T. 278, 378-379, 3$0). Suspicions began to arise about Appellant

and he is read his Miranda rights. (N.T. 278-279). Appellant indicated he wanted to talk to the

police and maintained his cooperation. (N.T. 278-279). Appellant explained the same story of

13 Circulated 06/08/2015 03:09 PM

events.· (N.T. 279-284). He took the police to 1629 Berryhill Street, where "Bob/Barber" lived.

(N.T. 280, 282-285). An individual by the name of Carlos Santiago-Cruz (hereinafter "Mr.

Santiago-Cruz") once lived at said address. (N.T. 285). Mr. Santiago-Cruz's photograph is

placed into a photo array and Appellant identified him as the shooter. (N.T. 285-286). Later, the

police discovered that Mr. Santiagc-Cruz w~s visiting someone_ at Osteopathic Hospital at the

time of the homicide. (N.T. 287-288).

At this point in time, Appellant was charged with false reports. (N.T. 288, 380). The

·police approached him a third time on April 16, 2012. (N.T. 288). Again, Appellant was read

his Miranda rights and he agreed to continue speaking with .police. (N.T. 289). · Appellant said

that the individual who committed the homicide was the person in the picture from his phone

holding the gun,:but he did not know his name. (N.T. 289-290). Appellant. called him "Pedro." . . (N .T. 290). Furthermore, the handgun in the picture was the same gun used to kill the victim.

(N.T. 293-294). He claimed the gun belonged to Pedro. (N.T. 294, 302). Again, Appellant

recounted the same storyline. (N.T. 290). Appellant said he did not know .Pedro was going t? shoot the victim, but admitted they had plans to rob the victim of his heroin which were made at

Pedro's house, (N.T.- 290~291, 295-301). Appellant identified Pedro in a photo array, provided

another address, and gave a third statement. (N.T. 2~1-293). As a result, the police proceed to

119 South I 4th St~eet.. (N.T. 303). Eventually, the police clear "Pedro/' whose real name is Mr.

Velazquez. (N.T. 304, 380).

On April 18, 2012, the police again meet with Appellant at ·the Harrisburg Police station.

(N.T. 304). . Appellant . continued . to cooperate, was apologetic for the misidentifications, and

'expressed concern for his safety. (N.T. 305). For the fourth time, Appellant is read his

constitutional rights and continues to cooperate. (N .T. 305, 327). At this point, Appellant

14 Circulated 06/08/2015 03:09 PM

identified an individual by name as Juan a/k/a Sangrey Torres, referenced occasionally as

"Miguel," i.e, Mr. Serrano-Torres. (N.T. 306, _380-381-383). Appellant provided a fourth

statement and identifies Mr. Serrano-Torres in a photo array as the man who shot Mr. Oquendo-

Nives, (N.T. 306, 309-310, 328, 382-384). He explained that when Mr. Oquendo-Nives arrived

he handed over the drugs to Mr. Serrano-Torres. (N.T. 309-320). Appellant and Mr. Serrano-

Torres told him they did not have the money, but were going to keep the drugs. (N.T. 309-320).

Then, Mr. Oquendo-Nives started running because he saw Mr. Serrano-Torres with the gun.

(N.T. 309-320). At that point, a shot was fired; (N.T. 309-320). Afterwards, Mr. Serrano-

Torres searched the victim's body and then left. the scene. (N .T. 320-321 ). Appellant helped

take Mr. Oquendo-Nives to the hospital. (N.T. 321-322, 375). He threw the' clothes he was

wearing in the trash. (N.T. 323). Further, the robbery was planned and the .40 millimeter gun

depicted in the phone pictures was the gun used in the homicide. (N .T. 324-326). Mr. Serrano-

Torres kept all the drugs that were stolen. (N.T. 327). As a result of this fourth statement, Mr. l

Serrano-Torres became a suspect. (N.T. 327-328).

On April 19, 2012, the police went to Ms. Baez-Luge's home on Market Street. (N.T.

33 0-331, 387). Mr. . Serrano-Torres . was found inside and taken him into custody. (N.T. 331,

386-388). Mr. Serrano-Torres was provided his Miranda rights. (N.T. 331-332). The police

showed Ms. Arroyo a photo array and she identified Mr. Serrano-Torres as the person staying in

her house who admitted to her that he committed this crime. (N.T. 332). Likewise; the police

showed Ms. Baez-Lugo a photo array and asked her to identify the individual who was at her

house and who confessed to her that he committed the crime. (N.T. 332-336). Again, Mr.

Serrano-Torres' photo was chosen. (N.T. 333-33,5). Ms·. Lopez-Rivera was asked to identify the

person who admitted to killing the victim. (N.T. 333). She identified Mr. Serrano-Torres, (N.T.

15 Circulated 06/08/2015 03:09 PM

333). Finally, on April 18, 2012, Ms. Ortiz was shown two photo array and asked to identify the

person who was in her home discussing the robbery. (N.T. 336-339). Ms. Ortiz circled the

photo of Mr. Serrano-Torres. (N.T. 338-339).

That same day, Mr. Serrano-Torres was taken to the holding cells in the police station.

(N.T. 391). Hewas there for a number of hours before Appellant was brought : . down . into a cell

as well. (N.T. 392-393). Thereafter, Detective Rivera was instructed to go down to the holding

cells. (N.T. 341, 393). Upon arrival, Detective Rivera and Detective Zimmerman overheard

Appellant and Mr. Serrano-Torres yelling at one another in Spanish about the homicide. (N.T.

342-347). Detective Rivera was able to recognize their voices. (N.T. 393). Further, he was

informed of who was in which holding cells. (N.T. 393) .. Detective Rivera immediately began

.taking notes. (N.T. 346, 394). Specifically, Appellant asked Mr. Serrano-Torres if he knew

anything about the gun and Mr. Serrano-Torres told. him it had not been found. (N.T. 346).

They spoke about hiding the gun. (N.T. 347). Appellant assured Mr. Serrano-Torres that he did

not tell on him. (N.T. 346-347). They talked about being afraid to be char~ed with .murder and

conspiracy. (N.T. 347). They talked about not confessing. (N.T. 347). Appellant told Mr.

Serrano-Torres that Mr. Serrano-Torres.is being charged because he shot the guy. (N.T. 347).

Mr. Serrano-Torres assured Appellant not to worry because h_e was the one that shot the victim

and so he would take responsibility for the homicide. (N.T. 347). Appellanttold Mr. Serrano-

Torres that he swallowed the drugs they took and puked them out at the prison. (N.T. 347). . .

Appellant asked Mr. Serrano-Torres why he did not go to Puerto Rico to which he responded he

did not have the money. (N.T. 348). Finally, they spoke about people telling on them. (N.T.

348). After listening for about forty-five minutes, Detective Rivera decided to let them know

that he had been standing outside of their holding cells listening to them talk about the homicide.

16 Circulated 06/08/2015 03:09 PM

(N.T. 349, 395-396). Detective Rivera proceeded to leave when Mr. Serrano-Torres requested to

speak with him in private. (N.T. 349-350, 396-397).

Detectiv~ Rivera took Mr. Serrano-Torres upstairs to the conference room and again read

Mr. Serrano-Torres is Miranda rights. (N.T. 350-351, 397). Mr. Serrano-Torres signed a form

written in Spanish which outlined his rights ·and indicated he wanted to speak with police. (N.T. ' . 351, 397). Afterwards, the police took a-statement from Mr. Serrano-Torres primarily discussing

what had just taken place in the holding cells of the police station. (N.T. 352-353, 354). Again,

Mr. Serrano-Torres was asked if he understood his rights and Mr. Serrano-Torres responded he

did. (N.T. 353). Then the police played Appellant's recorded statement implicating Mr.

Serrano-Torres. (N.T. 352-353, 397-398). When the statement got to the point where Appellant

identified Mr. Serrano-Torres as the shooter, Mr. Serrano-Torres stated that he heard enough and

was ready to give his own statement. (N.T. 353-354, 398-399). Mr. Serrano-Torres was alert

and not under the influence of drugs or alcohol. (N.T. 401-402). At that time, Mr. Serrano- ' Torres gave ·a second statement to police. (N.T. 354). The statement began at 7:28 p.m. and

ended at 8:10 p.m. (N.T. 354). Again, Mr. Serrano-Torres is informed of his rights and indicated

he wanted to speak. (N.'.f. 355). During the statement, Detective Rivera asks Mr. Serrano-

Torres to explain. what happened the night of the April 12, 2012. (N.T. 355). Mr. Serrano-

Torres responded:

. Well, that 'day, the other guy had someone that he would buy from, you understand, whatever he said, the drugs that he said. And then he stayed talkin' to me so that the drugs can be taken, you understand, and that he had on him. So me and my dumbness and ignorance, I said, yes, let's do it. It doesn't relate to this, but I didn't have any money. It doesn't relate, but I needed it. And then he -- I -- then he called him. We planned everything that we were going to do before we did it and kept that goin' to meet with the guy, the person that died, or better said, the one that I killed. Then -- then they met there. And when they met there, the guy was doin' the negotiating with him. I was hiding in place where he could not see me. But thesupposed friend of mine, the other guy, knew where I was, right?

17 t , ..}

I guess the negotiating did not take place correctly, but he· took everything. He had taken that. You understand me? Then supposedly he was short some money in order to square off with the guy because he didn't have all the money in total. Then that is when - then that is when let's told him. let's go there, understand? Let's talk there, that maybe I lost the money. And then when they go over there, that he started walkin', the guy asked him, who is that? And he saw me, and he said that he didn't know. But when they entered, I pointed with the gun. And then the guy got scared. And I told him, don't run, and he started runnin', He stopped. I told him, don't run. And he started runnin' again. And that's when I went "pan pan". We went up to him, took his money. I left one way and he left the other, understand? I left to my house. I didn't run. I walked, and .I in any moment ran. I went walking. I went to my house. I changed clothing, and much later he got there. We split the money, you understand? He went his. way, and I went mine. You understand? That's the way it happened.

(N.T. 356-358, 365-366). Mr. Serrano-Torres further stated, "I am conscious that I did a bad

thing, and I accept the reality of life." (N.T. 359). Mr. Serrano-Torres said their plan. was not to

kill, but rather just to rob the victim. (N.T. 359-361, 365). Mr. Serrano-Torres stated that the

gun used in this crime belonged to Appellant. (N.T. 361, 385) », Mr. Serrano-Torres did not

know the victim, but admitted he had a previous romance with Ms. Soto, the victim's girlfriend.

(N.T. 361-364).· After the homicide, Appellant and Mr. Serrano-Torres divided everything

Appellant took; Mr. Serrano-Torres received two bundles of heroin and $200. (N.T. 367-369).

-Detective Rivera identified Mr. Serrano-Torres in Court as the person whoprovided the above

summarized statement. (N.T. 369).

Testimony of Hai Sheng Li:

Hai Sheng Li (hereinafter "Dr. Li") works for the Pennsylvania State Police DNA

Division as a forensic DNA scientist. (N.T. 404). Dr. Li was qualified as an expert witness in

the field of DNA profiling. (N.T. 404-407). Dr; Li explained that a DNA sequence is different

from person to person and can be found in every celJ of the human body. (N.T. 407-408). Saliva

from a mouth and the epithelial cells, which are the living cells in the mouth, would contain

DNA if left on a piece of evidence. (N.T. 408). It is also possible to perform DNA testing on a

18 Circulated 06/08/2015 03:09 PM

dried bodily fluid stain, such as saliva or blood. (N.T. 409). Further, safeguards are in place to

make sure everything. is done properly at the· testing lab, such as. sealing . and labeling the

evidence. (N.T. 40.9-413). Dr. Li received buccal swabs collected from Mr. Serrano-Torres and

Appellant. (N.T. 413-414). FurtherDr, Li received three cigarette butts from the crime scene.

(N.T. 414). The first cigarette contained DNA from Mr. Serrano-Torres and Appellant. (N.T. . .

414-415). Dr. Li explained that no other person could have left DNA on this piece of evidence·

except Mr: Serrano-Torres and Appellant. (N,l 415-41'6). Regarding a second cigarette butt,

Dr. Li was able to obtain a single DNA -profiie matching that of Mr. Serrano-Torres's DNA.

(N.T. 417). In regards to a third cigarette butt, it did not match any of the D~A profiles obtained

from the buccal swabs. (N.T. 4'18-419). There was no determination made as to how long the

DNA had been on these objects. (N .T. 419)._

Concise Statenient of Matters Complained Of On Appeal

• Trial counsel was ineffective in his representation in that he did not introduce witnesses · on his behalf or properly cross-examine the witnesses during trial. . . • The Commonwealth. failed to provide sufficient evidence at trial to.support the guilty verdict. Legal Discussion

Since there 'is a presumption that counsel provided effective representation, the defendant

bears the burden of proving ineffectiveness. Commw. v. Ligons, 971 A.2d l l zs, 1137 (Pa. 2009)

(citation omitted). To prevail on a claim that counsel was constitutionally ineffective, the

appellant must overcome the presumption of competence by showing that: (l) his· underlying

· claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have . . some reasonable basis designed to effectuate his interests; and-(3) but for counsel's

ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding

would have been different. Comm\V. v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987).

19 Circulated 06/08/2015 03:09 PM

Under any ineffective claim, counsel can be foun~ ineffective if counsel failed to file a direct

appeal as requested by the defendant. Commw. v. Lantzy, 736 A.2d 564, 571 (Pa. 1999).

First, Appellant's direct appeals rights 'Yere reinstated nunc pro tune in response to his

Post Conviction Relief Act petition claiming ineffective assistance of counsel for failing to file a

direct appeal. Any claim regarding ineffective assistance of counsel for failure to file a direct

appeal has been remedied by reinstating his direct appeal rights.

Next, Appellant contends that trial counsel did not properly represent: him, introduce

witnesses on his behalf or properly cross-examine the witnesses during trial. It is evident from

· the record that counsel did cross-examine witnesses during the trial. The major witness against

Appellant, Detective Rivera, was thoroughly cross examined as to Appellant's initial statements,

his willingness to cooperate, the high drug and .high crime nature of the area where the crime

occurred. He also reveals under cross that Appellant :Vas nervous about cooperating as he was

afraid of the shooter. All of this information was helpful in attempting to mitigate Appellant's

involvement.

As t~ presenting witnesses, Appellant does not indicate that there were any witnesses

who would be of use_ to him during the trial. Further, he chose not to testify himself, as is his

right. There Ls no indication anywhere in the record that there are any witnesses who might exonerate Appellant. It appears form the record that counsel did properly represent Appellant at

trial.

A claim challenging the sufficiency of the evidence is a question of law. Commw. v.

Snyder, 870 A.2d 336, 346 (Pa. Super. 2005). When considering a challenge to the sufficiency

of the evidence, it is necessary to determine whether the evidence admitted at trial and all

reasonable inferences 'therefrom, when viewed in the light most favorable to the Commonwealth

2Q , .. Circulated 06/08/2015 03:09 PM

as the verdict winner, is sufficient to ·establish every element of the offense beyond a reasonable

doubt. Commw. v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003).

When reviewing the sufficiency of the evidence, the reviewing court may not substitute

its judgment for that of the fact-finder; if the record contains support for the conviction it may

not be disturbed. Coinmw. v. Parker, 847 A.2d 745 (Pa. Super. 2004). Moreover, the trier of

fact while passing upon the credibility of witnesses and the weight of the evidence produced, is

free to believe all, part or none of the evidence. Commw. v. Bullick, 830 A.2d 998, I ooo· (Pa.

Super. 2003). The facts and circumstances established by the Commonwealth at trial need not

preclude every possibility of innocence. Commw. v. Kerry, 906 A.2d 1237, 1240 (Pa. Super.

2006). The Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt via wholly circumstantial evidence. Id .

. Since the jury convicted Appellant of all charges, it may be presumed the jury found the

witnesses' testimony credible.

Appellant was found .guilty of criminal. homicide. A person· commits the offense of

criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of

another human being. l 8 Pa. C.S.A. § 2501. "A criminal homicide constitutes murder of the

second degree when it is committed while defendant was engaged as a principal or an

accomplice in the perpetration of a felony." 18 Pa.C.S.A. § 2502(b)(emphasis added). The

"perpetration of a felony" is defined as: "The act of the defendant in engaging in or being an

accomplice in the commission of, or an attempt to commit, or flight after committing, or

attempting to commit robbery, rape, or deviate sexual intercourse by fore~ or thr~at of force,

arson, burglary or kidnapping." 18 Pa.C.S.A. § 2502(d).

21 ,. Circulated 06/08/2015 03:09 PM

There was substantial testimony that Appellant and Mr. Serrano-Torres were robbing the

victim at the time he was killed. In fact> both Appellant and Mr. Serrano-Torres admitted that

robbing the victim was the original plan. Contrary to Appellant's belief, Appellant and Mr.

Serrano-Torres did not need to intend to kill the victim, the fact is, the victim was killed during

t~e perpetration of a felony - that is during the robbery. As an accomplice in the robbery,

Appellant is liable for the murder of the victim.

Appellant was found guilty of robbery; A person is guilty of robbery if, in the course of

committing a theft, he: (i) inflicts serious bodily injury upon another; or (ii) threatens another

with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa. C.S.A.

§370l(a)(l )(i)&(ii).

Again, there was substantial testimony; including confessions that Appellant and Mr.

Serrano-Torres inflicted . serious bodily injury (shot) the victim .w. hile committing a theft. They \

took money and drugs from him. . .. Appellant was found guilty of criminal conspiracy. A person is guilty of conspiracy with

another person or persons to commit a crime if with the intent of promoting or facilitating its

commission he: (1) agrees with such other person or persons that they or one or more of them

will engage in conduct which constitutes such crime or an attempt .or solicitation. to commit such

crime; or (2) agrees to aid such other person or persons in the planning or commission of such

crime or of an attempt or solicitation to commit such crime and (e) Overt act.s-No person may be

convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is

alleged and proved to have been done by him or by a person with whom he conspired. 18 Pa.

C.S.A. § 903.(a),(e). ·

22 1· Circulated 06/08/2015 03:09 PM

In this case, both men admitted to planning· to commit the crime of robbery. They

planned to rob the victim of his drugs. Further, they called the victim, set up the "buy" and then

in fact took the drugs without paying. They then threatened the victim' with the gun and .

ultimately shot him.

Here, there is nothing within the evidence and the findings of the jury that "shock one's

sense of justice." The jury was presented with a credibility decision to make in this case. The

record consists of sufficient testimony by each witness to convict Appellant of the crimes

charged. The jury was able to assess the credibility of these witnesses and to make a

determination as to· whether or not they were telling the truth. In this case, the jury decided to ·

believe the testimony of the witnesses, decided it was enough to prove each and every element of

the offense beyond a reasonable doubt, and convict Appellant.

Accordingly, we request that Appellant's appeal in this matter be dismissed and that the

Jury's verdict and this Court's subsequent sentencing be affirmed.

Respectfully submitted:·

2, Deborah E. Curcillo, Judge

Dated: ____..f_Z.._._-_/_--_/ _G{__ .. ))· ,:~· ,r-· ..,: ··:.1 ::-::ic::) ·-· ···;"')··· ::.=~ "T; ::.:-- fti3:: ~?(} ;_.:· ,.. . ., -, ;! : .. ~:::, c-:-. .-- ..- .. . ~ ..

23 • ' J ' Circulated 06/08/2015 03:09 PM

Distributio,~:u-: . . - Hon. Deborah E. Curcillo . /~ @ 2-fY},1 Dauphin County Clerk of Courts ., j . Joe Cardinale, Esq.. , Dauphin County District Attorney's Office I . D] X Jennifer Tobias, Esq., PO Box 365 Stewartstown, PA 17363 ma I The Superior Court of Pennsylvania ((} 0 i /

,

24 Circulated 06/08/2015 03:09 PM

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERJOR COURT OF : PENNSYLVANIAFORTHE VS. : MIDDLE DISTRICT

JOSUE FIGUEROA : NO.: l 591MDA 2014

CERTIFICATEOF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief for Appellant

was served upon the following in the manner indicated below: ,A)eD \\f\µD~,~ HAND DELIVERY: Recefved fn SuperiorCourt Superior Court of Pennsylvania Middle District JAN 2 :s 2015 Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 1600 MIDDLE Harrisburg, PA 17106-2435

Edward M. Marsico, Esquire Dauphin County District Attorney Dauphin County Courthouse Front and MarketStreets Harrisburg, PA 17101

FIRSTCLASS - U.S. MAIL

Josue Figueroa LD-6709 SCI Greene 175 Progress Drive Waynesburg, PA 15370

ByQQ~illl\ .Tenruer ETohG:Esquire Atto~ey ID# 82816 P.O. Bfx 365 Stewartstown, PA 173 63 (717) 650-8457 Dated: January 28, 201 5