Com. v. Tirado, V.

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2018
• Docket: 442 MDA 2018
• Status: Unpublished

Opinion

J-S56004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : VICTOR TIRADO : : Appellant : No. 442 MDA 2018

Appeal from the Judgment of Sentence February 7, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001914-2017

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 14, 2018

Appellant, Victor Tirado, appeals from the judgment of sentence entered

in the Lancaster County Court of Common Pleas, following his jury trial

conviction for first-degree murder.1 We affirm and grant counsel’s petition to

withdraw.

The relevant facts and procedural history of this case are as follows. On

September 9, 2015, at approximately 11:45 p.m., police received a dispatch

indicating someone had been shot in the parking lot of Molly’s Pub. When

police arrived on scene, they observed Victim lying on the ground in a pool of

blood. Victim was still alive at that time. An ambulance transported Victim

to the hospital, where he died a few days later. An autopsy confirmed the

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1 18 Pa.C.S.A. § 2502(a). J-S56004-18

cause of death was a gunshot wound to the head and the manner of death

was homicide.

Police investigation revealed that shortly before the shooting, Victim was

at home in his apartment complex (located behind Molly’s Pub) with his

fiancée, Kristin McNeil. Victim and Ms. McNeil were in bed when Victim

received a phone call. Victim told Ms. McNeil that he was going outside to

meet “Vic,” whom Ms. McNeil identified as Appellant. Victim met with

Appellant in the alleyway behind his apartment complex to sell Appellant a “20

piece” (20 ounces of crack). Appellant’s friends, David Ramos-Perez and

Harry Espada, were waiting in the car for Appellant during the drug exchange.

Mr. Ramos-Perez heard a gunshot and then saw Appellant run back to the car.

Appellant stated: “Let’s get out of here” and “it only took one shot.”

On February 1, 2018, a jury convicted Appellant of first-degree murder.

The court sentenced Appellant on February 7, 2018, to life imprisonment.

Appellant timely filed a notice of appeal on March 9, 2018. On March 12,

2018, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 2, 2018,

counsel filed a statement of intent to file a brief under Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), per Pa.R.A.P.

1925(c)(4).

As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders and Commonwealth v. Santiago, 602

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Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough review

of the record, counsel has concluded the issues to be raised are wholly

frivolous; 2) file a brief referring to anything in the record that might arguably

support the appeal; and 3) furnish a copy of the brief to the appellant and

advise him of his right to obtain new counsel or file a pro se brief to raise any

additional points the appellant deems worthy of review. Santiago, supra at

173-79, 978 A.2d at 358-61. Substantial compliance with these requirements

is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon2 requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held: ____________________________________________

2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

Instantly, appellate counsel filed a petition to withdraw. The petition

states counsel conducted a thorough review of the record and determined the

appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the

brief and a letter explaining Appellant’s right to retain new counsel or proceed

pro se to raise any additional issues Appellant deems worthy of this Court’s

attention.3 In the Anders brief, counsel provides a summary of the facts and

procedural history of the case. Counsel’s argument refers to relevant law that

might arguably support Appellant’s claims. Counsel further states the reasons

for her conclusion that the appeal is wholly frivolous. Therefore, counsel has

substantially complied with the requirements of Anders and Santiago.

3 On August 22, 2018, appellate counsel filed an application for correction, explaining she initially sent the Anders brief, petition to withdraw, and letter advising Appellant of his rights to SCI-Graterford, but the documents were returned to her because Appellant had been moved to SCI-Phoenix. Counsel subsequently served the documents on Appellant at the correct address. Counsel attached a corrected proof of service to her application for correction. We grant counsel’s application for correction.

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Counsel raises the following issue on Appellant’s behalf:

SHOULD APPELLATE COUNSEL BE GRANTED LEAVE TO WITHDRAW AS COUNSEL BECAUSE ANY APPELLATE ISSUES IN THE INSTANT CASE ARE FRIVOLOUS?

(Anders Brief at 4).4

Appellant argues: (1) the evidence was insufficient to convict him of

first-degree murder; (2) the verdict was against the weight of the evidence5;

(3) the trial court erred by failing to give the “corrupt and polluted source”

jury instruction; (4) the trial court improperly admitted video evidence

depicting Appellant walking in prison; and (5) he was denied a fair trial due to

the tainted jury as a result of media coverage of this case. We disagree.

When examining a challenge to the sufficiency of evidence:

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 ____________________________________________

4Appellant has filed a pro se response that contests only the sufficiency of the evidence, which counsel also raises in the Anders brief.

5 Appellant also challenges Kevin Beerman’s testimony concerning the shooter’s height; Ms. McNeil’s allegedly inconsistent testimony; Mr. Ramos- Perez’s credibility where he hoped to receive consideration in exchange for his testimony; the jury’s verdict in light of Mr. Espada’s recantation testimony at trial; and the comparison of the suspect depicted on the surveillance footage from the night of the murder with the video of Appellant walking in prison. Each of these claims is a discrete challenge to the weight of the evidence.

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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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

The Crimes Code defines first-degree murder as follows:

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

18 Pa.C.S.A. § 2502(a).

To find a defendant guilty of first-degree murder a jury must find that the Commonwealth has proven that he…unlawfully killed a human being and did so in an intentional, deliberate and premeditated manner.

It is the element of a willful, premeditated and deliberate intent to kill that distinguishes first-degree murder from all other criminal homicide. Specific intent to kill may be inferred from the defendant’s use of a deadly weapon upon a vital part of the victim’s body.

The mens rea required for first-degree murder, specific intent to kill, may be established solely from circumstantial evidence.

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Commonwealth v. Schoff, 911 A.2d 147, 159-60 (Pa.Super. 2006) (internal

citations omitted).

Instantly, the Commonwealth presented at trial, inter alia: (1)

testimony from multiple police officers who responded to the crime scene on

the night of the murder, observed Victim lying on the ground and bleeding

from the head, and recovered $40.00, crack cocaine, and a Bersa 380 gun

from Victim’s person, and a .45 caliber shell casing from the crime scene;6 (2)

testimony from Jasmin Raqib that she saw a man dressed all in black with a

hoodie walking toward the alleyway near Molly’s Pub, heard a gunshot, saw a

man bleeding on the ground, and called 911; (3) testimony from Kevin

Beerman that he heard a loud “pop” outside his window and saw someone

wearing a dark hoodie and dark pants walking quickly from the scene; (4)

testimony from Sergeant Randell Zook that he collected video footage from

the crime scene; the video showed a suspect who had a distinct limp/gait; (5)

testimony from Victim’s fiancée, Ms. McNeil, that shortly before the murder

Victim received a phone call and said he was going to meet “Vic,” whom Ms.

McNeil identified as Appellant; (6) testimony from Mr. Ramos-Perez that on

the night of the murder, he accompanied Appellant to meet up with Victim to

buy a “20 piece,” or 20 ounces of crack; Appellant was wearing a black hoodie,

black sweatpants, and black shoes; Mr. Ramos-Perez saw Appellant walk into

6 The parties stipulated that it is impossible to shoot a .45 caliber bullet from the gun recovered on Victim’s person.

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the alley, heard a gunshot, and then saw Appellant run back to the car;

Appellant said: “Let’s get out of here” and “it only took one shot”; Mr. Ramos-

Perez confirmed that Appellant walks with a limp; Mr. Ramos-Perez hoped to

receive consideration on outstanding charges in exchange for his testimony;

(7) testimony from Harry Espada that he accompanied Appellant to buy drugs

from Victim on the night of the murder; Appellant was dressed in all black;

Mr. Espada said he initially told police that Appellant had admitted shooting

Victim, but Mr. Espada recanted that statement at trial; (8) testimony from

Detective Stephen Owens that he analyzed cell phone records during

investigation of this case, and Appellant called Victim at 10:48 p.m. on the

night of the murder; Victim did not answer that call but he called Appellant

back at 10:53 p.m.; (9) testimony from Detective Stanley Roache that when

he interviewed Mr. Espada during investigation of this case, Mr. Espada said

Appellant had confessed to shooting Victim; Detective Roache collected video

evidence of Appellant walking in prison while incarcerated before trial and the

video confirmed Appellant has a unique walk/gait; and (10) testimony from

Dr. Wayne Ross that he performed an autopsy of Victim on September 14,

2015, and determined Victim’s cause of death was a gunshot wound to the

head and the manner of death was homicide. Viewed in the light most

favorable to the Commonwealth as verdict-winner, the evidence was sufficient

to convict Appellant of first-degree murder. See 18 Pa.C.S.A. § 2502(a);

Hansley, supra; Schoff, supra.

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Regarding Appellant’s remaining claims of error, preliminarily, a

challenge to the weight of the evidence generally must be preserved before

the trial court, per Pa.R.Crim.P. 607 that provides:

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004).

Additionally, a defendant waives a challenge to the court’s failure to

issue a jury instruction where the defendant did not request that instruction.

Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406 (2008), cert. denied,

556 U.S. 1131, 129 S.Ct. 1613, 173 L.Ed.2d 1000 (2009). Similarly, to

preserve an issue for review, a party must make a timely and specific objection

to the admission of evidence. Commonwealth v. Duffy, 832 A.2d 1132

(Pa.Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 816 (2004). See

also Pa.R.A.P. 302(a) (explaining general rule that issues not raised before

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trial court are waived and cannot be raised for first time on appeal).

Instantly, Appellant did not preserve his challenge to the weight of the

evidence before the trial court by any of the methods set forth in Rule 607(A).

See Pa.R.Crim.P. 607(A)(1)-(3); Gillard, supra. Appellant also failed to

request a “corrupt and polluted source” jury instruction. See Powell, supra.

Similarly, Appellant did not object to the Commonwealth’s pre-trial motion in

limine to admit the video of Appellant walking in prison or object to its

admission during trial. See Duffy, supra. Further, Appellant did not request

a change of venue or seek other relief before the trial court based on the

alleged pre-trial publicity of this case.7 See Pa.R.A.P. 302(a). Therefore,

Appellant’s challenge to the sufficiency of the evidence merits no relief; and

his other issues are waived.8 Following our independent review of the record,

we agree the appeal is frivolous and grant counsel’s petition to withdraw.

Accordingly, we affirm.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

7 Moreover, during voir dire, the court asked the prospective jurors if they recalled reading or hearing anything about this case. Juror #81 was the only juror to respond affirmatively and was stricken for cause.

8 Appellate counsel acknowledges that ineffectiveness claims must generally wait until collateral review. See Commonwealth v. Burno, 626 Pa. 30, 94 A.3d 956 (2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1493, 191 L.Ed.2d 435 (2015) (reiterating general rule that claims of ineffective assistance of counsel should be deferred until collateral review).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2018

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