J-S52040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ELVIN RAFAEL MATEO : : Appellant : No. 1784 MDA 2016
Appeal from the Judgment of Sentence August 29, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005730-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 22, 2017
Appellant, Elvin Rafael Mateo, appeals from the judgment of sentence
entered in the York County Court of Common Pleas, following his jury trial
convictions for conspiracy to commit first degree murder, first degree
murder, attempted first degree murder, and aggravated assault. 1 We
affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.2 We add only that Appellant timely filed a concise statement
____________________________________________
1 18 Pa.C.S.A. §§ 903, 2502(a), 901(a), 2702(a)(1), respectively. 2 In its opinion at page 5, the trial court states Thomas Hoke testified that he saw an occupant of a red SUV wearing a black jacket while the vehicle drove (Footnote Continued Next Page) J-S52040-17
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on
November 9, 2016.
Appellant raises the following issues for our review:
[WHETHER] THE JURY VERDICT WAS AGAINST THE GREATER WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL SO AS TO SHOCK ONE’S SENSE OF JUSTICE ON THE FOLLOWING GROUNDS: THE COMMONWEALTH’S EVIDENCE DID NOT DISPROVE BEYOND A REASONABLE DOUBT [APPELLANT’S] CLAIM OF SELF DEFENSE, THE COMMONWEALTH’S EVIDENCE DID NOT DISPROVE BEYOND A REASONABLE DOUBT THAT THE ALLEGED VICTIM(S) WERE THE INITIAL AGGRESSOR(S), IN THAT THE COMMONWEALTH DID NOT PRODUCE A MURDER WEAPON OR OTHER SUFFICIENT EVIDENCE THEY DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THAT [APPELLANT] KILLED [VICTIM 1] OR INJURED [VICTIM 2?]
[WHETHER] THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT THE JURY’S VERDICT AS TO ALL CHARGES ON THE FOLLOWING GROUNDS: THE COMMONWEALTH’S EVIDENCE DID NOT DISPROVE BEYOND A REASONABLE DOUBT [APPELLANT’S] CLAIM OF SELF DEFENSE, THE COMMONWEALTH’S EVIDENCE DID NOT DISPROVE BEYOND A REASONABLE DOUBT THAT THE ALLEGED VICTIM(S) WERE THE INITIAL AGGRESSOR(S), IN THAT THE COMMONWEALTH DID NOT PRODUCE A MURDER WEAPON OR OTHER SUFFICIENT EVIDENCE THEY DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THAT [APPELLANT] KILLED [VICTIM 1] OR INJURED [VICTIM 2?]
[WHETHER] THE HONORABLE TRIAL COURT ERRED IN ADMITTING TESTIMONY FROM DETECTIVE FETROW THAT [APPELLANT], IN RESPONSE TO A QUESTION AS TO HOW HE WAS EMPLOYED, STATED THAT HE SOLD DRUGS
_______________________ (Footnote Continued)
away from an area where shots had been fired. The record shows Thomas Hoke actually testified that he could not remember the clothing of the occupants in the vehicle.
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WHICH PREJUDICE TO [APPELLANT] FAR OUTWEIGHED ANY PROBATIVE VALUE[?]
(Appellant’s Brief at 4).
When examining a challenge to the weight of the evidence, our
standard of review is as follows:
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has 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. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted).
A challenge to the sufficiency of the evidence implicates the following
legal principles:
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
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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 [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The standard of review for admission of evidence is as follows: “The
admissibility of evidence is at the discretion of the trial court and only a
showing of an abuse of that discretion, and resulting prejudice, constitutes
reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-98, 80
A.3d 380, 392 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2842, 189
L.Ed.2d 824 (2014).
The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013),
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appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible
error, an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d
74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Maria Musti
Cook, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed January 20, 2017, at 10-26)
(finding: (1) no evidence Appellant or Appellant’s co-defendant presented at
trial served as basis for claim of self-defense; therefore, Commonwealth had
no obligation to prove Victims were not initial aggressors and Appellant did
not shoot Victims in self-defense; additionally, evidence established
Appellant was not free from fault in provoking incident; testimony of
Raymond Bruno-Carrasquillo indicated on night of incident, Appellant and
co-defendant drove around “lurking” for targets from rival gang; Appellant
cannot initiate hunt for gang members and subsequently claim self-defense;
jury received instruction regarding use of force/deadly force in self-defense,
even though no evidence presented at trial warranted finding of self-
defense; Commonwealth did not produce murder weapon, but abundance of
circumstantial evidence and other significant evidence supported finding of
guilt beyond reasonable doubt; Bruno-Carrasquillo testified Appellant told
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Bruno-Carrasquillo that, on night of incident, Appellant sought retribution
against gang and shot into vehicle Victim 2 was driving, shooting driver and
passenger of car; Bruno-Carrasquillo also testified that co-defendant said he
drove up to Victim 2’s car and Appellant shot into car; Belinda Akers testified
she lent her maroon SUV to male, on night of incident, whom she later
identified as co-defendant, and he returned the SUV with shattered rear
window; co-defendant’s cell phone contained text messages from Aker’s cell
phone about her SUV; Thomas Hoke testified he heard series of gunshots on
night of incident and saw maroon or red SUV occupied by two black males
drive away at high speed from area of shooting; Detective Gregory Schick
testified there were multiple bullet holes in Victim 2’s vehicle, while Ms.
Akers testified there were no bullet holes in her SUV; evidence established
on night of incident, Appellant and co-defendant each dropped guns as they
fled on foot from police; DNA analyst testified it was highly likely DNA found
on gun Appellant dropped was Appellant’s DNA; bullet found in Victim 2’s car
matched gun Appellant dropped; gunshot residue analysis revealed
existence of gunshot residue on Appellant’s clothing and hands; evidence
and testimony presented were sufficient for jury to determine Appellant’s
guilt; verdict does not shock court’s conscience; (2) given this evidence,
Appellant failed to assert valid defense of self-defense; in his Rule 1925(b)
statement, Appellant failed to state with specificity what elements of his four
convictions Commonwealth allegedly failed to prove beyond reasonable
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doubt; therefore, Appellant has waived his sufficiency issue; (3) at trial,
Bruno-Carrasquillo testified he and Appellant sold drugs every day; Bruno-
Carrasquillo’s credibility was at issue; Commonwealth offered Appellant’s
statement to police, that Appellant sold drugs for living, to substantiate
Bruno-Carrasquillo’s testimony; Appellant’s own statement that he sold
drugs for living was admissible).3 Accordingly, we affirm on the basis of the
trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/22/2017
3 At pages 10-11, the trial court block quoted the pre-August 29, 2011 version of 18 Pa.C.S.A. § 505(b)(ii), regarding when the use of deadly force is unjustifiable; the difference between the quoted version and the current version is insignificant for the purpose of this appeal. At pages 25-26, the trial court quoted Pa.R.E. 404(b)(3) as stating evidence of other crimes, wrongs, or acts “may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.” This principle is from Pa.R.E. 404(b)(2), which states, “In a criminal case [evidence of crimes, wrongs, or other acts] is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).
-7- Circulated 09/12/2017 04:27 M
·.)
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA ·,;J CRIMINAL DIVISION ..,
COMMONWEALTH OF n PENNSYLVANIA Ii, I~ j) ,;J v. EL VIN MATEO, Appellant
STATEMENT OF LOWER COURT PURSUANT TO PA.R.A.P. 1925(a)
AND NOW, this c2..J'°"-aay of January 2017, upon receipt of a notice that an appeal has been filed in this matter, and in consideration of the
Concise Statement of Matters Complained Of on Appeal filed on behalf of
Elvin Mateo ("Defendant"), by and through his attorney, Richard Robinson,
Esquire, the undersigned files this statement pursuant to Pa.R.A.P. 1925(a).
The reasons for this Court's denial of Defendant's post-sentence
motion can be found herein. . ,..~, 0 ,:;¥) .. - _, •. r~· ~·r• . ~·~- -i '
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·-<:-,· ' ' c., ,, ,•
,.;~ /ii ,,) FACTUAL AND PROCEDURAL IDSTORY
··;I Defendant was charged with the following offenses: Criminal
Conspiracy to Criminal Homicide under 18 Pa. C.S.A. 903(a)(l), 18 Pa.
C.S.A. 250l{a); Murder of the First Degree under 18 Pa. C.S.A. 2502(a);
Murder of the Third Degree under 18 Pa. C.S.A.2502(c); Criminal Attempt to
Murder of the First Degree under 18 Pa. C.S.A. 90l(a), 18 Pa. C.S.A.
2502(a); and, Aggravated Assault under 18 Pa. C.S.A. 2702(a){l).
The incident giving rise to these charges occurred as follows. On
October 15, 2013, at approximately I 0:24 P.M., York City Police responded
to the area of North Newberry Street and West Gas Avenue to investigate a
report of shots fired in the area. Upon arrival at the 300 block of West Gas
Avenue police observed people looking at the ground in the parking area,
mid-block on the north side of the street. Police further observed multiple
shell casings on the ground along with tinted window glass shards. As police
were investigating the 300 block of West Gas Avenue, they received a radio
call for officers to respond to 128 Jefferson Avenue to investigate two
gunshot victims at that location. Upon arrival, officers located Jordan
2 ...~ ·.:J Breeland in the back seat of a gold Buick Rendezvous. The alleged second
,,J victim, Davon Brown, could not be located but police did eventually establish
contact with him at the hospital upon notice that Brown was in triage being
evaluated.
Breeland had a visible gunshot wound to the chest and police removed
him from the vehicle in an attempt to perform emergency care until advanced
life support arrived. Breeland subsequently died at the scene. On October 16,
2013, a forensic autopsy was performed on Breeland which ruled his death a
homicide with the cause being a gunshot wound to the chest.
The driver of the vehicle, Davon Brown, received treatment for a
gunshot wound to his left hand and a small wound on his right wrist at
Wellspan York Hospital. Brown told police that he was driving the gold
Buick with Timiere Crosby in the front passenger seat and Breeland seated in
the rear of the vehicle. As they were driving in the 300 block of West Gas
Avenue, a SUV type vehicle pulled up to their vehicle and individuals in that
car began firing into the SUV being driven by Brown.
3 :'I
On October 16, 2013, at approximately 1 :40 A.M., York City Police
•.:J detectives, Detective Sowers and Detective Spence, arrived at 39 S. Belvidere ... Street to speak with a witness regarding the homicide when a report for shots !'I Ii, fired in the area of Belvidere and Market Streets was broadcast over the radio.
As these detectives approached the intersection, gunshots could be heard
coming from east of their location. Detective Spence contacted County
Control and a perimeter was established in the area. After the perimeter was
established, police officers began searching the area for the source of the
gunshots.
At 2: 5 5 A.M., Trooper Panchik of the Pennsylvania State Police
located two possible suspects who began to flee from the area of Hartley and
Philadelphia Street. These two suspects were seen throwing handguns as they
fled from police. The suspects were apprehended after the foot pursuit and
both handguns were recovered. The suspects were identified as Elvin Mateo
and Durell Cotton. Both suspects were wearing black jackets at the time of
their arrest.
4 ·..~ ... -) Dashboard surveillance was utilized in determining what actor threw
·;J which gun when they were fleeing from police. It was later determined that li, Defendant Mateo attempted to dispose of a .357 Rossi · handgun and n Ji, Defendant Cotton attempted to dispose of a Smith and Wesson 10 mm
handgun. · Both of these handguns were sent for ballistic analysis and it was
determined that a bullet fragment recovered inside the Buick Rendezvous .
originated from the .357 Rossi firearm.
Gunshot Residue Analysis was conducted on both Defendant Mateo's
and Defendant Cotton's clothing and hands. These tests established the
existence of Gun Shot Residue on both Defendant's clothing and hands.
Thomas Hoke, who was working in the area at the time of the shooting,
stated that he observed a maroon or red in color SUV occupied by two black
males drive away from the area of the shooting at a high rate of speed heading
· towards Philadelphia Street. One of the vehicle's occupants was wearing a
black jacket.
On October 16, 2013, Belinda Akers contacted Lower Windsor Police
Department regarding damage to her 2003 Mercury Mountaineer SUV. This
5 •.:? vehicle is a SUV maroon in color, Ms. Aker reported that she loaned her
•.,J vehicle to a male and when it was returned the rear window was shattered. 1!. She stated that on the evening of the homicide, she loaned her vehicle to a n Ji. young black male and an hour after the shooting the male called a friend of
Aker's and told her where it was parked. Aker's then located her vehicle with
the new damage. Akers identified Defendant Cotton from an eight (8) person
photo line-up as being the black male she loaned her SUV to on the night of
the murder.
Photographs of Aker' s Mercury Mountaineer were shown to Thomas ·
Hoke and he states that it appeared to be the same color and body type of the
vehicle he observed fleeing the scene immediately after the shooting.
On July 21, 2015, police interviewed Raymond Bruno-Carrasquillo
regarding this incident. Bruno-Carrasquillo was with Defendant Cotton just
prior to the shooting and was with both defendants on later dates where
details of the murder were discussed. Defendant Mateo told Bruno-
Carrasquillo that they were "lurking" for targets from the Parkway gang, the '
gang Jordan Breeland and Davon Brown were allegedly associated with.
6 Defendant Mateo told Bruno-Carrasquillo that they were in a SUV that
Defendant Cotton had "rented" from an addict on the night of the alleged ti. incident. Defendant Mateo further stated to Bruno-Carrasquillo that they had
come across a gold color SUV driven by Davon Brown and he had a .357
handgun while Defendant Cotton possessed a 1 Omm handgun. Defendant
Mateo further related to Bruno-Carrasquillo that he had fired into the driver's
and passenger side of the vehicle. Additionally, Defendant Mateo said that
later that same evening police chased both defendants and they attempted to
throw away their guns. ·
On May 20, 2016, at the conclusion of the trial, a jury unanimously
found both Defendant Mateo and his co-defendant, Defendant Cotton, guilty
of first degree murder, criminal conspiracy, attempted murder, and aggravated
assault. On August 29, 2016, Defendant was sentenced to an aggregate
sentence of life imprisonment without the possibility of parole and 20-40
years consecutive. On September 8, 2016, Defendant filed a Post-Sentence
Motion moving for a new trial based on a weight of the evidence claim. On
October 6, 2016, this Court denied Defendant's Post Sentence Motion. A
7 ··,
,.} timely notice of appeal was filed ori October 25, 2016. This Court ordered :) ··,1 . Defendant to file a l 925(b) Statement of Errors Complained of on Appeal on
October 26, 2016.
Defendant raises three main issues on review. In summary, they are as
follows: (1) the jury verdict was against the greater weight of the evidence
presented at trial so as to shock one's sense of justice; (2) the evidence at trial . . was insufficient to support the jury's verdict as to all charges; (3) this Court
erred in admitting testimony from Detective Fetrow that the Defendant, in
response to a question as to how he was employed, stated that he sold drugs
which prejudiced the Defendant and far outweighed any probative value.
DISCUSSION
a. The jury verdict was against the greater weight of the evidence presented at trial so as to shock one's sense of justice
We review Defendant's claim based on the following standard:
An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, 8 ·:'!
~{ .., .,)
·.:) in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the ',,j trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice ..
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal
citations and quotes omitted). ·,, The Pennsylvania Supreme Court has held that "a new trial should be
· awarded when the jury's verdict is so contrary to the evidence as to shock
one's sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail." Commonwealth v. Brown. 648
A.2d 1177, 1189 (Pa. 1994), quoting Thompson v. City of Philadelphia. 493
A.2d 669, 672 (Pa. 1985). In denying Defendant's post-sentence motion, this
Court's sense of justice was not shocked by the verdict.
In support of Defendant's argument that the jury verdict was against the
greater weight of the evidence presented at trial so as to shock one's sense of
justice, the Defendant claims:·
1. The Commonwealth's evidence did not disprove beyond a reasonable doubt the Defendant's claim of self-defense.
2. The Commonwealth's evidence did not disprove beyond a 9 reasonable doubt that the alleged victim(s) were the initial aggressors. ·,j
However, this Court finds the record fails to establish as a matter of law
a valid claim of self-defense. In relevant part, section 505 of the
Pennsylvania Crimes Code defines the concept of self-defense·as, "[u]se of ,., ;.,. force justifiable for protection of the person. -The use of force upon or
toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of
unlawful force by such other person on the present occasion." 18 Pa.C.S.A. §
505. However, the rule is not without limitations. With regard to the use of
deadly force:
(b) Limitations on justifying necessity for use of force.-
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by 10 .. ~
retreating or by surrendering possession of a thing to· a person asserting a claim of right thereto or by complying with a demand that he abstain from any Ii, action which he has no duty to take ... : 18 Pa.C.S.A. § 505.
"While there is no burden on a defendant to prove [a] claim [of self-
defense], before the defense is properly at issue at trial, there must be some
evidence, from whatever source, to justify a finding of self-defense."
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001), citing
Commonwealth v. Black, 376 A.2d 627, 630 (Pa. 1977). "If there is any
evidence that will support the claim, then the issue is properly before the fact
finder." . Torres, supra at 345, citing Commonwealth v. Mayfield, 585 A.2d
1069, 1071 (Pa. Super. 1991). If the issue is properly before the fact finder,
the Commonwealth bears the burden of proving beyond a reasonable doubt
that the killing was not committed in self-defense. Commonwealth v.
Gillespie, 434 A.2d 781, 784, (Pa. Super. 1980).
During closing arguments, Defendant presented a theory of self-
defense. A claim of self-defense "may consist of evidence from whatever
source. Such evidence may be adduced by the defendant as part of his case,
11 ;r
or conceivably, may be found in the Commonwealth's own case in chief or be
. •,,i elicited through cross-examination." Mayfield, supra at 1070-71. In support ..... ~
of Defendant's claim, he directs this Court to the following testimony and
evidence; (1) Thomas Hoke (T.T. pp. 159-179), (2) Todd Neumyer (T.T. pp.
654-659); (3) Officer Matthew Tunal · (T.T. pp. · · 387-404); (4)
Commonwealth's Exhibit 54 (Dick's Sporting Goods receipt); and, (5)
Officer Gregory Schick (T.T. pp. 308-340).
Defendant did not testify on his own behalf and did not present any
witnesses. Through presentation of. the Commonwealth's case and
Defendant's cross-examination of the Commonwealth's witnesses, in addition
to thoroughly reviewing the before listed testimony as well as the entire
record, this Court finds there was no evidence presented that would serve as a
basis to establish a claim of self-defense. Thus, the Commonwealth was
under no obligation to prove that the killing of Jordan Breeland and injuries to
DavonBrown were not committed in self-defense and that the alleged victims
were not the initial aggressors.
12 Additionally, when asserting a theory of self-defense, the defendant is
required to show that he was: ( 1) free from fault in provoking or contimiing Ii, the incident which resulting in the killing; (2) must have reasonably believed
that he was in imminent danger of death or great bodily·harm, and such force
was necessary in order to save himself therefrom; and, (3) the defendant did
not violate any duty to retreat or to avoid the danger. · Commonwealth v.
Samuel, 590 A.2d 1245, 1247A8 (Pa. 1991), 18 Pa.C.S. § 505.
There was significant evidence presented that established that the
Defendant was not without fault in provoking the victims. Based on
Raymond Bruno-Carrasquillo's testimony that Defendant had admitted to him
that he and his co-defendant were driving around "lurking" for victims from
the Parkway gang, this Court finds the Defendant is unquestionably at fault
for initiating and perpetrating the incident giving rise to Defendant's
convictions. . (N.T. Trial, May 18, 2016, at 424). Use of force is only
justified when the actor is protecting himself against the unlawful use of
force. 18 Pa.C.S.A. §505(a). The Defendant cannot initiate a persecution for
members of the Parkway gang and then argue that he was defending himself
13 ,,,.,
~} against his victims. Consequently, Defendant should have been precluded :.7
,.,J from invoking a justification of self-defense.
The jury did receive the Use of Force/Deadly Force in Self-Defense n li, Instruction however this Court concludes it was erroneously given. During
the charge conference, the Commonwealth first objected to instruction stating,
I've put a lot of thought into this since we discussed it a few days ago, and there has been no testimony presented to support a self- defense.. .. there are circumstantial inferences that can be certainly argued by defense counsel, but I have not heard any testimony indicating in any way that the victims in this case shot first.
(N.T. Trial, May 19, 2016; at 704).
However, the Commonwealth went on to say,
I don't know the law, and can't make an argumentto the Court with regard to case law and things of that nature at this point. And so, I would rather not try to do that without knowing the law. I would rather just honestly have it read, because I would hate for, should there he a conviction, forthat to be an issue, and I just don't know.
(Id. at 708).
As stated above, there was no evidence presented at trial to warrant a .
finding by the jury of self-defense, and thus, that would warrant an instruction
14 on self-defense. Therefore, again, the Commonwealth was under no burden
·.,) to disprove the defense beyond a reasonable doubt and prove that the alleged
victims were not the initial aggressors. Accordingly, Defendant's claim that
jury verdict was against the greater weight· of the evidence because the
Commonwealth's evidence did not disprove beyond a reasonable doubt the
Defendant' s claim of self-defense and that the alleged victims were the initial
aggressors is without merit.
3. In that the Commonwealth did not produce a murder weapon or other sufficient evidence they did· not establish beyond a reasonable doubt that the Defendant killed Jordan Breeland or injured Davon Brown.
In a related matter, Defendant contends he is entitled to a new trial on
the grounds that the jury verdict was against the weight·ofthe evidence at trial
so as to shock one's sense·of justice because the Commonwealth could not
produce the murder weapon and failed to present other sufficient evidence to
establish beyond a reasonable doubt that Defendant killed Jordan Breeland or
injured Davon Brown. However, in· denying Defendant's post-sentence
motion, this Court's sense of justice was not shocked by the verdict.
15 ~-··
..•1 The fact-finder "is free to believe all, part, or none of the evidence and
.... , to determine the credibility of the witnesses." Commonwealth v. Champney, Ji, 832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d
666 (Pa. 1999)). The Commonwealth may satisfy its burden of proof entirely
by circumstantial evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 607
(Pa. 2011). When challenging the verdict based on a weight of evidence
claim, the defendant must show that the evidence was "so tenuous, vague and
uncertain that the verdict shocks the conscience of the court" in order to
prevail. Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
Defendant again offers the following testimony in support ofhis claim:
(1) Thomas Hoke (T.T. pp; 159-179), (2) Todd Neumyer (T.T. pp. 654-659);
(3) Officer Matthew Tunal (T.T. pp. 387-404); (4) Commonwealth's Exhibit
54 (Dick's Sporting Goods receipt); and, (5) Officer Gregory Schick (T.T. pp.
308-340). However, this Court does not find the before listed testimony to be
supportive of Defendant's argument.
16 ··.,
,...
While the Commonwealth did not produce the gun which discharged r-'':
·,j the fatal shot which killed Jordan Breeland, this Court finds there was an
abundance of circumstantial evidence and other sufficientevidence presented
to support the finding of guilt on all four of the charges Defendant was found
,., to have committed. Upon review of the entire record, this Court finds the
below testimony to be most supportive of verdict.
Raymond Bruno-Carrasquillo, a long-time acquaintance of Defendant
testified that Defendant told Bruno-Carrasquillo he had "rented" a burgundy
SUV from an addict in order to "lurk" for targets from the Parkway gang on
. the night the alleged incident. (N.T. Trial, May 18, 2016, at 418, 420, 424).
Bruno-Carrasquillo stated Defendant was out for retribution on the Parkway
gang because the parkway gang had recently "shot up" Liberty Court, a
location the Defendant often frequented and more of less considered his
territory. (Id. at 416-417,.418). Defendant told Bruno-Carrasquillo that while
driving he had come across an SUV driven by Davon Brown with Jordan
Breeland as a passenger. Bruno-Carrasquillo stated Defendant told him he
had shot into the vehicle driven by Brown. (Id. · at 424r Also, Bruno- 17 Carrasquillo testified that Defendant's co-defendant had told him he that he :J ... •.,-J had pulled up to the victim's car and Defendant had shot into the car.· (Id. at
426). Defendant later told Bruno-Carrasquillo that he had shot the driver of
the vehicle. and then he shot the passenger and left them "stinking." (Id. at
425).
Later, shortly after the alleged incident, Belinda Akers contacted Lower
Windsor Police Department regarding damage to her 2003 Mercury
Mountaineer SUV. {Id. at 365, 369, 373). She stated she had lent her maroon
in color SUV to a male and it was returned with a shattered rear window. (Id.
at 356, 364). When presented with a photo-lineup of eight individuals, Akers
identified Defendant's co-defendant as the person she lent her SUV to on. the
night of the murder. (Id. at ?69). Further, upon examination, Defendant's co-
defendant's cell phone contained text messages from Aker's cell phone
connecting the co-defendant's cell phorie to the maroon Mercury
Mountaineer. (Id. at 364).
18 Thomas Hoke, who was working in the area of the murder on the night
· ,I of the alleged incident, testified that he had heard a series of gunshots and ti. then saw a maroon or red SUV occupied by two black males drive away from
the area of the shooting at a high rate of speed. (N.T. Trial, May 17, 2016 at
161-163).
Additionally, Detective Gregory Schick of the York City Police
Department testified that there were multiple bullet holes identified· on the
victim's vehicle, while Ms. Aker's testified none where located on her SUV.
(N.T. Trial, May 18, 2106, at 314-315, 328).
On the night of the alleged incident, the Pennsylvania State Police
apprehended Defendant and his co-defendant after they fled from the police
on foot. (N.T. Trial, May 17, 2016, at 251). Upon review of the recording
devices equipped on their vehicles, police believe that Defendant dropped the
.357 revolver during his flight that was found shortly before he was
apprehended laying on the sidewalk in the area in which he fled from. (N.T.
Trial, May 19, 2016, at 563, 566, 582). A DNA analyst testified that there
was a one in seven trillion chance that it was Defendant's DNA found on the
19 .357 revolver. (Id. at 618). Additionally, one of the bullets found in the
,.-J victim's car matched up with the .357 revolver. (Id. at 656). Further, a
gunshot residue analysis, performed by Stephanie Horner, a forensic scientist n li, employed by RJ Lee Group, revealed the existence of gunshot residue on
Defendant's clothing and hands. (N.T. Trial, May 17, 2016, at 217, 218).
While circumstantial, this Court concludes that the evidence --and
testimony presented was sufficient for the jury to determine the Defendant's
guilt for the elements of each charge beyond a reasonable doubt and the
verdict does not shock this Court's conscience.
b. The evidence at trial was insufficient to support the jury's verdict as to all charges.
Next, Defendant contends that the evidence presented at trial was
insufficient to support the jury's verdict as to all charges, asserting:
1. The Commonwealth's evidence did not disprove beyond a reasonable doubt the Defendant's claim of self-defense,
2. The Commonwealth's evidence did not disprove beyond a reasonable doubt that the alleged vletlmts) were the initial aggressor(s)
3. In that the Commonwealth did not produce a murder weapon or other sufficient evidence they did not establish 20 ··, '·~
,,
,;) · beyond a reasonable doubt that the Defendant killed ;) .., JordanBreeland or injuredDavon Brown. •,J ···~ ti. Defendant's insufficiency argument goes to the legal question of
whether he could be convicted under 18 Pa. C.S.A. 903(a){l), 18 Pa. C.S.A.
2501(a); 18 Pa. C.S.A. 2502(a); 18 Pa. C.S.A. 901(a), 18 Pa. C.S.A. 2502(a); () and 18 Pa. C.S.A. 2702(a)(I ). "A claim challenging the sufficiency of the
evidence is a question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a reasonable doubt."
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal
citations, footnotes, and quotation marks omitted).
From the same analysis presented above, this Court finds the Defendant
has failed to properly assert a valid defense of self-defense. Accordingly, this
Court finds Defendant's first two claims under his sufficiency of evidence
claim are therefore meritless.
As to Defendant's third sufficiency claim, this Court finds the
Defendant failed to state with specificity what specific elements of the four
convicted crimes the Commonwealth allegedly failed to prove beyond a 21 ; .. ,
., . , reasonable doubt. Instead, Defendant's 1925(b) statement generically alleges
that the "evidence at trial was insufficient to support the jury' s verdict as to ·ti. all charges · ... [i]n that the Commonwealth did not produce a murder weapon
or other sufficient evidence they did not establish beyond a reasonable doubt
that the Defendant killed Jordan Breeland or injured Davori Brown."
Defendant's 1925(b) Statement, November 9, 2016.
The Superior Court has held that "an appellant's Rule l 925(b)
statement must state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient." Commonwealth v.
Garland, 63 A.3d 339, 344 (Pa. Super. 2013). "Such specificity is of
particular importance in cases . where... the . appellant was convicted of
multiple crimes each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt," Id.
Here, Defendant was convicted of four separate offenses, yet
Defendant's challenge to the sufficiency of evidence in his l 925(b) statement
baldly asserts a blanket claim. Defendant's statement does not specify to this
Court as to which elements were lacking proof for any of the four crimes and
22 -~-;~
why the evidence was insufficient to not support the verdict. ...... ··.J Defendant offers a wide-range of citations in the trial transcripts of ·tf. where to find the testimony of certain trial witnesses to support his claim but n Ji, such general supportive testimony says. nothing about how or why the
. evidence was insufficient. Thus, this Court is left to guess what material
elements the Defendant believes are unproven. "[A] Concise Statement
which is too vague to allow the court to identify the issues raised on appeal is
the functional equivalent to no Concise Statement at all." Commonwealth v.
Heggins, 809 A.2d 908, 911 (Pa.Super.2002) (citation omitted). Accordingly,
because Defendant's 1925(b) .statement does not specify the allegedly
unproven elements, this Court believes the Defendant's sufficiency.issue is
waived for appellate review.
c. This Court erred in admitting testimony from Detective Fetrow that the Defendant, in response to a question as to how · be was employed, stated that be sold drugs which prejudice to the Defendant far outweighed any probative r
·value.
Lastly, Defendant asserts that this court erred in allowing Detective
Fetrow to testify that Defendant told Detective Fetrow that he sold drugs for a
23 .~ I
',,;1
·,.:} living. (N.T Trial, May 19, 2016, at 503). Initially, during trial, Defendant :;) . ~ ., ·i) objected to the statement being admitted arguing that such information was . ~ .,
li, prejudicial to Defendant. (Id. at 278). 'When the issue was first presented this
Court agreed the testimony would be prejudicial and at that point in the trial
because there was nothing to corroborate the statement. (Id. at 279). The ·.J
Commonwealth agreed to omit the question and revisit the issue after more of
a foundation was laid. (Id.).
The following day the Commonwealth again raised the issue after
eliciting testimony from Raymond Bruno-Carrasquillo. (N.T. Trial, May 19,
2016, at 493). During direct examination, Bruno-Carrasquillo stated that he
and the Defendant were together, hanging out, almost every day prior to the
alleged incident that injured Davon Brown and killed Jordan Breeland. (N.T.
Trial, May 18, 2016, at 411). Further, Bruno-Carrasquillo testified that he
and Defendant would wake up, go to Liberty Court and sell drugs, day after
day. (Id.).
The Commonwealth felt as though Bruno-Carrasquillo was extensively
cross-examined by both Defendant and his co-defendant and Bruno-
24 : ~
· ·:.) .. . :-~'
•.•7 Carrasquilo's credibility was at issue. (N.T. Trial; May 19, 2016, at_493). The
··.,-J . Commonwealth argued that it was important to allow Detective Fetrow to ti. testify that Defendant told him that he sold drugs for a living because it would
corroborate the testimony of Bruno-Carrasquillo and. Bruno-Carrasquillo's
testimony was vital to their case. (Id. 493, 494).. Defendant again argued that
the prejudice to the defense would outweigh any benefit or probative value
the statement might have. (Id. at 494, 495). However, this Court disagreed
and allowed Detective Fetrow to testify as to what the Defendant stated he·
had done for employment.
Evidence of Defendant's prior bad acts is not permissible to present as
evidence at trial in order to establish the defendant's criminal character or
tendencies. Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super.
2008). However, such evidence may be admissible ''where it is relevant for
some other legitimate purpose and not utilized solely to blacken the
defendant's character." Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.
Super. 2007) (citation omitted). However, Rule 404(b)(3) provides that
evidence of other crimes, wrongs, or acts "may be admitted in a criminal case
25 ··.1
,•
only upon a showing that the probative value of the evidence outweighs its
'·ii potential for prejudice." Pa.R.E., Rule 404(b)(3). Ji. This Court found that the probative value of Defendant's statement that
he sold drugs for a living was not outweighed by any potential prejudicial
·.} effect. . The statement was offered specifically and for the purpose of
corroborating Bruno-Carrasquillo's testimony. The Court found that Bruno-
Carrasquillo's credibility was certainly at issue and the introduction of
Defendant's own statement would serve a legitimate purpose of corroborating
the· testimony of Bruno-Carrasquillo.
CONCLUSION
Based on the above reasons; this Court respectfully urges affirmance of
this Court's Order dated October 3, 2016.
The Clerk of Courts is directed to provide notice of the entry of this
Statement to counsel of record. ·
.,.. -·