J-S10034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGELO MALDONADO : : Appellant : No. 1659 EDA 2017
Appeal from the Judgment of Sentence April 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009674-2015
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 13, 2018
Appellant Angelo Maldonado appeals from the judgment of sentence
entered based upon his jury-trial convictions for first-degree murder1 and
possessing an instrument of crime (PIC).2 Appellant asserts that his
conviction for first-degree murder was against the weight of the evidence
because the death occurred when he was highly intoxicated and in the context
of a physical altercation. Appellant additionally asserts that a mistrial should
have been declared because the prosecutor engaged in prosecutorial
misconduct during closing arguments. We affirm.
On August 8, 2015, John Kyser and a group of friends were playing darts
and shooting pool at Owen’s Bar, located at Cottman Avenue and Roosevelt ____________________________________________
1 18 Pa.C.S. § 2502(a).
2 18 Pa.C.S. § 907. J-S10034-18
Boulevard, Philadelphia. Kyser had never seen Appellant prior to that night,
but Appellant joined in the group’s pool game and Appellant and Thomas
Ewing, Jr. (Decedent) were on the same pool team. Appellant and Decedent
did not appear to have any conflict between them during the pool game.
At approximately 3:00 a.m., Decedent and two of his companions stole
several bottles of liquor and fled through the rear entrance of the bar.
Appellant gave chase in his pickup truck. Appellant found Decedent in a
nearby alley, exited his truck, and stabbed Decedent a dozen times, one of
which hit Decedent’s heart. Kyser observed Appellant “swinging on
[Decedent].” N.T. Trial Vol. 1, 4/5/17, at 18. Nicholas Lawrence was with
Kyser and also saw Appellant on top of Decedent. A separate group of people,
including Logan Welch and Brendan Sharp, observed Appellant swinging at
Decedent and heard somebody yell that there was a knife or “he is stabbing
me.” Id. at 146.
Appellant’s neighbor, Christopher Hinkle, observed Appellant in his
driveway at approximately 3:30 a.m. on the night of the murder. Hinkle
testified that Appellant had a gash in his leg and was “pretty intoxicated.”
N.T. Trial Vol. 1, 4/6/17, at 31. Appellant admitted to being in a scuffle on
the ground with another man and continuously repeated, “I really messed up
this time.” Id.
Appellant was tried by a jury from April 3, 2017 to April 7, 2017.
Appellant sought a mistrial because the prosecutor indicated during closing
arguments that Decedent was “gutted like a pig.” Id. at 125. The trial court
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instructed the prosecutor not to use that phrase again and denied the request
for a mistrial.
At the conclusion of the trial, on April 7, 2017, Appellant was convicted
of first-degree murder and PIC. Appellant was sentenced the same day to a
term of life imprisonment without parole for first-degree murder and a
concurrent term of 2½ to 5 years’ incarceration for PIC. On April 8, 2017,
Appellant filed a timely post-sentence motion, which the trial court denied
without a hearing on April 24, 2017. Appellant filed a notice of appeal to this
Court on May 20, 2017. Thereafter, in response to an order of the trial court,
Appellant filed a timely statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
1. Was [Appellant’s] conviction for first[-]degree murder against the weight of the evidence since the evidence clearly established that the killing in question occurred when [Appellant] was highly intoxicated and in the context of a physical argument?
2. Did the [trial c]ourt err in denying [Appellant’s] request for a mistrial when the prosecutor committed prosecutorial misconduct during closing arguments by stating Appellant had[] “gutted [Decedent] like a pig”?
Appellant’s Brief at 3.
In his first issue, Appellant asserts that his first-degree murder
conviction is against the weight of the evidence. In support of his contention
that he lacked specific intent to kill, Appellant asserts that he
expressed no animosity toward the decedent throughout the evening in question. The subsequent stabbing occurred during a
-3- J-S10034-18
physical fight[3] in which [Appellant] was “very intoxicated” and “not coherent.” Indeed, within five minutes of [Appellant] coming into contact with Christopher Hinkle, [Appellant] ha[d] lost consciousness.”
Appellant’s Brief at 10. According to Appellant, the finding of specific intent
to kill based upon these facts shocks the conscience. Id. at 11.
“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014) (citation omitted). Additionally,
[a] verdict is not contrary to the weight of the evidence because of a conflict in testimony or because the reviewing court on the same facts might have arrived at a different conclusion than the factfinder. Rather, a new trial is warranted only when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Where, as here, the judge who presided at trial ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations omitted).
“[A] showing of voluntary intoxication can negate the intent necessary
for a conviction of first-degree murder and reduce the crime of murder from
first to third degree.” Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa.
2004). However, the evidence presented “must show that the defendant was
____________________________________________
3 To the extent Appellant implies a self-defense argument by noting the physical nature of the altercation, it is not developed in his brief.
-4- J-S10034-18
unable to form the specific intent to kill because he was so overwhelmed or
overpowered by drugs to the point of losing his faculties at the time the crime
was committed.” Id. at 908.
As the trial court noted in its Pa.R.A.P. 1925(a) opinion, “Hinkle was the
only witness to testify that [Appellant] appeared intoxicated on the night of
the incident.” Trial Ct. Op., 8/3/17, at 5 n.2. Significantly, Hinkle did not
observe Appellant until after the altercation had occurred. As the court
additionally noted, video footage of Appellant chasing Decedent does not
depict Appellant staggering or swaying. See id. at 10 n.4. Accordingly, the
trial court did not palpably abuse its discretion in denying Appellant’s weight
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J-S10034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGELO MALDONADO : : Appellant : No. 1659 EDA 2017
Appeal from the Judgment of Sentence April 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009674-2015
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 13, 2018
Appellant Angelo Maldonado appeals from the judgment of sentence
entered based upon his jury-trial convictions for first-degree murder1 and
possessing an instrument of crime (PIC).2 Appellant asserts that his
conviction for first-degree murder was against the weight of the evidence
because the death occurred when he was highly intoxicated and in the context
of a physical altercation. Appellant additionally asserts that a mistrial should
have been declared because the prosecutor engaged in prosecutorial
misconduct during closing arguments. We affirm.
On August 8, 2015, John Kyser and a group of friends were playing darts
and shooting pool at Owen’s Bar, located at Cottman Avenue and Roosevelt ____________________________________________
1 18 Pa.C.S. § 2502(a).
2 18 Pa.C.S. § 907. J-S10034-18
Boulevard, Philadelphia. Kyser had never seen Appellant prior to that night,
but Appellant joined in the group’s pool game and Appellant and Thomas
Ewing, Jr. (Decedent) were on the same pool team. Appellant and Decedent
did not appear to have any conflict between them during the pool game.
At approximately 3:00 a.m., Decedent and two of his companions stole
several bottles of liquor and fled through the rear entrance of the bar.
Appellant gave chase in his pickup truck. Appellant found Decedent in a
nearby alley, exited his truck, and stabbed Decedent a dozen times, one of
which hit Decedent’s heart. Kyser observed Appellant “swinging on
[Decedent].” N.T. Trial Vol. 1, 4/5/17, at 18. Nicholas Lawrence was with
Kyser and also saw Appellant on top of Decedent. A separate group of people,
including Logan Welch and Brendan Sharp, observed Appellant swinging at
Decedent and heard somebody yell that there was a knife or “he is stabbing
me.” Id. at 146.
Appellant’s neighbor, Christopher Hinkle, observed Appellant in his
driveway at approximately 3:30 a.m. on the night of the murder. Hinkle
testified that Appellant had a gash in his leg and was “pretty intoxicated.”
N.T. Trial Vol. 1, 4/6/17, at 31. Appellant admitted to being in a scuffle on
the ground with another man and continuously repeated, “I really messed up
this time.” Id.
Appellant was tried by a jury from April 3, 2017 to April 7, 2017.
Appellant sought a mistrial because the prosecutor indicated during closing
arguments that Decedent was “gutted like a pig.” Id. at 125. The trial court
-2- J-S10034-18
instructed the prosecutor not to use that phrase again and denied the request
for a mistrial.
At the conclusion of the trial, on April 7, 2017, Appellant was convicted
of first-degree murder and PIC. Appellant was sentenced the same day to a
term of life imprisonment without parole for first-degree murder and a
concurrent term of 2½ to 5 years’ incarceration for PIC. On April 8, 2017,
Appellant filed a timely post-sentence motion, which the trial court denied
without a hearing on April 24, 2017. Appellant filed a notice of appeal to this
Court on May 20, 2017. Thereafter, in response to an order of the trial court,
Appellant filed a timely statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
1. Was [Appellant’s] conviction for first[-]degree murder against the weight of the evidence since the evidence clearly established that the killing in question occurred when [Appellant] was highly intoxicated and in the context of a physical argument?
2. Did the [trial c]ourt err in denying [Appellant’s] request for a mistrial when the prosecutor committed prosecutorial misconduct during closing arguments by stating Appellant had[] “gutted [Decedent] like a pig”?
Appellant’s Brief at 3.
In his first issue, Appellant asserts that his first-degree murder
conviction is against the weight of the evidence. In support of his contention
that he lacked specific intent to kill, Appellant asserts that he
expressed no animosity toward the decedent throughout the evening in question. The subsequent stabbing occurred during a
-3- J-S10034-18
physical fight[3] in which [Appellant] was “very intoxicated” and “not coherent.” Indeed, within five minutes of [Appellant] coming into contact with Christopher Hinkle, [Appellant] ha[d] lost consciousness.”
Appellant’s Brief at 10. According to Appellant, the finding of specific intent
to kill based upon these facts shocks the conscience. Id. at 11.
“[A] true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.
2014) (citation omitted). Additionally,
[a] verdict is not contrary to the weight of the evidence because of a conflict in testimony or because the reviewing court on the same facts might have arrived at a different conclusion than the factfinder. Rather, a new trial is warranted only when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Where, as here, the judge who presided at trial ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations omitted).
“[A] showing of voluntary intoxication can negate the intent necessary
for a conviction of first-degree murder and reduce the crime of murder from
first to third degree.” Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa.
2004). However, the evidence presented “must show that the defendant was
____________________________________________
3 To the extent Appellant implies a self-defense argument by noting the physical nature of the altercation, it is not developed in his brief.
-4- J-S10034-18
unable to form the specific intent to kill because he was so overwhelmed or
overpowered by drugs to the point of losing his faculties at the time the crime
was committed.” Id. at 908.
As the trial court noted in its Pa.R.A.P. 1925(a) opinion, “Hinkle was the
only witness to testify that [Appellant] appeared intoxicated on the night of
the incident.” Trial Ct. Op., 8/3/17, at 5 n.2. Significantly, Hinkle did not
observe Appellant until after the altercation had occurred. As the court
additionally noted, video footage of Appellant chasing Decedent does not
depict Appellant staggering or swaying. See id. at 10 n.4. Accordingly, the
trial court did not palpably abuse its discretion in denying Appellant’s weight
claim regarding whether Appellant was so overpowered by his intoxication that
he was unable to form a specific intent to kill. See Tharp, 830 A.2d at 528.
Thus, the trial court did not commit an error in this regard.
Next, Appellant claims that the trial court erred by failing to declare a
mistrial based on prosecutorial misconduct during closing arguments. In
particular, the prosecutor indicated that Decedent was “gutted like a pig.”
N.T. Trial Vol. 1, 4/6/17, at 125. Appellant argues that “the inevitable effect
of these remarks was to inflame the passion of the jury to such an extent that
they could no longer objectively assess the evidence.” Appellant’s Brief at 12.
A claim of prosecutorial misconduct is evaluated based upon
whether the defendant was deprived of a fair trial, not deprived of a perfect one. Thus, a prosecutor’s remarks do not constitute reversible error unless their unavoidable effect . . . [was] to prejudice the jury, forming in their minds fixed bias and hostility
-5- J-S10034-18
toward the defendant so that they could not weigh the evidence objectively and render a true verdict.
Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010) (citation
omitted).
Instantly, once the “gutted” remark was made by the prosecutor,
defense counsel objected. The trial court sustained the objection. In front of
the jury, the court warned the prosecutor to “refrain from those kinds of
remarks,” and instructed that she could not use the term “gutted.” N.T. Trial
Vol. 1, 4/6/17, at 125. The prosecutor complied with this directive. In the
words of the court, although the language was “a little overboard[,] . . . the
jury knows it was oratorical flair. It was common sense. He was stabbed a
number of times but he certainly wasn’t gutted. So I am going to deny the
motion for a mistrial.” Id. at 159-60; see Commonwealth v. Chmiel, 889
A.2d 501, 544 (Pa. 2005) (indicating prosecutorial misconduct will not be
found for mere use of oratorical flair). Accordingly, the trial court did not err
by refusing to call a mistrial following the prosecutor’s remarks during closing
arguments.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/13/18
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