J-S57010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AXEL BARRETO
Appellant No. 1258 EDA 2014
Appeal from the Judgment of Sentence November 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004008-2012
CP-51-CR-0004009-2012
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
JUDGMENT ORDER BY MUNDY, J.: FILED DECEMBER 30, 2015
Appellant, Axel Barreto, appeals nunc pro tunc from the November 14,
2013 aggregate judgment of sentence of life without the possibility of
parole, imposed after being found guilty of three counts of first-degree
murder, four counts of attempted murder, and possession of an instrument
of crime (PIC).1 After careful review, we affirm.
On appeal, Appellant argues the evidence was “insufficient as a matter
of law where there was no evidence that he had a specific premeditated
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 901(a), and 907(a), respectively. Specifically,
Appellant was sentenced to life without the possibility of parole on each
murder count, 10 to 20 years’ imprisonment on each attempted murder
count, and 2 ½ to 5 years’ imprisonment on the PIC count with each
sentence to run consecutively.
J-S57010-15
intent to kill and where [] Appellant legally established a valid self[-]
defense.” Appellant’s Brief at 14. Additionally, Appellant asserts a claim of
prosecutorial misconduct based on the Commonwealth’s closing arguments.
Id. at 17. Specifically, Appellant argues the Commonwealth implied he was
lying and that he “was picking and choosing additional defense when the
evidence was incorrect for the first defense.” Id. at 18-19. Further, he
argues the Commonwealth improperly commented on the truthfulness of
Appellant’s witnesses and Appellant’s failure to present certain witnesses.
Id. at 19.
Upon careful examination of the certified record, we conclude that the
trial court has authored a 22-page opinion that thoroughly and
comprehensively addresses Appellant’s claims. Accordingly, we affirm on
the basis of the well-reasoned December 4, 2014 opinion of the Honorable
Rose Marie DeFino-Nastasi. We therefore adopt the trial court’s opinion as
our own and incorporate it in this judgment order.2 In the event of further
proceedings, the parties shall attach a copy of the December 14, 2014 trial
court opinion to any filings.
____________________________________________
2
We express no opinion on the final paragraph of the trial court opinion on
page 21, as that specific issue is not raised by Appellant on appeal, and
therefore, is not presently before us to review.
-2-
J-S57010-15
Based on the foregoing, we conclude Appellant’s issues on appeal are
devoid of merit. Accordingly, the trial court’s November 14, 2013 judgment
of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
-3-
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ll\ THE COURT OF COMHON PLEAS OF PHlLAOELPJllA
CRIMINAL TRIAL l)l\'ISION
COMMONWEALTII er: PENNSYLVA1'IJ1. CP-06-CR-0004008-2012
v. CP-06-CR-0004009-2012
AXEL 8/\RRE"l O
' ·11., •..
(JPINTON
·,. .•• 1
·,. .r·
.,,,
•.v -. \..
..., e.
·Jnt'l•
Rose Marie DeF no-Nastasi. J. l
··
. • • •
•.•
-· ' . - .. ~·f,..,·..• 1o•f ..P1'~
..-: ,, • .:..~:
PROCEDURAL HISTORY
On November 8.2013. the Defendant was found guilty after a jury trial. presided over by
Honorable Rose Marie De+ino-Nastasi. of three counts uf First Degree Murder, l 8 Pa.C.S. §
2502(a), as a Id .iny of me first degree: four counts of Attempted Murder. 18 Pu.C.S. ~ 90 l , as a
felony of the fir:;t degree; and Possession or an lnstrumcru of Crime (PTC). 18 Pa.C.S. * 907(b),
as a misdemeanor of the first degree.
Followir.g a Death Penalty Hearing. on :'\ovembcr l 4.2013. the Defendant V\ as
sentenced to lih imprisonment without the oossibility or parole for the first dcgre« murder of
Javier Orlandi; a consecutive lite sentence without the possibility of parole tor the first degree
murder of Joshi a Suto: a consecutive life sentence without the possibility of parole for the first
degree murder «f'Dante Lugo: a consecutive sentence often (10) to twenty (20) years for the
attempted murd ~r ofA; ron Marrero: a cone urrent sentence of ten ( l 0) to twenty (20) years for
the attempted n: urdcr o.: Brandon Hernandez: a concurrent sentence or ten ( I 0) to rwcntv (20)
years fur the alt empted murder of Christian Nunez: a concurrent sentence of' ten ( 10) to twenty
(20) years for tt c attempted murder of Angel Rodriguez: and two and a half (2 ~'~) to Iivc { 5)
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years for the Pl( con vie .iou. to nm concurrently. Notes of Testimony (N.T.) 1 I 114/l 3 at PP· 9-
10.
On February 7,: O 14. Defendant Ii le J a PCRA to reinstate Appellate Rights Nunc Pro
Tune which was granted on April 22. 201-L
On April 24. 20 4. a notice or appeal was filed.
On August 25. '2014. Dcfcndants lT1.111sel filed a Statement of Matters Complained of on
appeal, pursuan: to an order of the court directing counsel to Jile a 1925(b) statement.
FACTS
On Janu iry 10. :~012. Defendant Axel Barrero opened fire on a car filled with seven
unarmed teenage boys who had come to the Defendant's Juniata Park home on the 4000 block of
Neilson Street t,J fistfig u one or his stepsor s. Benny 1 orres. N.T. 10/29/13 at 66:4--2:2. Aaron
Marrero ( age si.accn). Christian Nuner (agt· Iouneen). Brandon f Icrnandcz (age eighteen). Javier
Orlandi (age fo1111ce11). Joshua Soto (age fourteen}. Dante l ugo (age fourteen) and his brother,
Angel Rodriguez (age fifteen) were all occi pants of the vehicle and members ota teenage gang
which cal led ils::I f K ra:- y Ass t\.._)Ul;dK.t\ 13 ).1 N. l', 10/25/13 at 64 :7-25: 10/31/1 J al 32: 7-13.
Benny Torres \H\S Christiaus classmate and a member ofa rival gaug. Eric Torrcsdalc Boys
(ETB). N.T. 10.29/13 at 34:6-::!4: 1012-+113 1t 160:5-10.
Aaron Marrero was treated for a gunshot wound to the back of his neck and survived .
~ all died as a result of their injuries.
Joshua Sow, Javier Orl.indi, and Dante l.uuo - :"J.T. lil/29/13 at
188:15-19. 2os.10-13. n4:12-10.
Aaron i\ larrero. Brandon Ilernande. .. :'\ ugcl Rodriguez. and Chri st ian Nunez tcsti ficd to
the events leadi rg up tr the shooting. On the night or· the crime. the sev en boys drove to J1111iat3
I
Different Commc nwcalth vitnesses referred to Kf !3 as 111e~111ing K1~>it1g All Bitcb?, or l,rn,y Ass Boulz or Kick
As, Boulz. N.1. l( ·2..r13 at l::'6:7-2.?; 10'28.13 at 34:-t,25.
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Park. spray-painted KAB on a fence. and tock a photo in front of it. N.T. 10/25/13 at 153:6-15.
In the photo. the boys made a ··K' with their hands. ld. at pp. 156·57. Christian posted the photo
on F acebook. Tr c Defeudant's stepson. Benny. commented on the photo: =Nowadnys people just
don't know how to act. {.s:· Id. at 157:6-1:.; 10/:29/13 at43:l9-21, 82:13-19. 129:16-21.
Christian testific d that F.. S. stands for ··real xhit." id at 84:3-l l. The comment incited an
argument betwc m Christian and Benn) on laccbook. The two arranged to meet outside of the
Defendant's hone on Neilson Street 10 tistf ght. The 10\11 drove to the Defendant's home. They
did not bring an r weap<.•m? with them. N.1. I 0/24/ l 3 al pp. l 33·3-L 10/25/l 3 at pp. 12-13.
When the KAB arrived. they observed a male in El grey hooded sweatshirt. later identified
as the Defendant. stand.ng on the porch smoking a cigarette. N.T. I 0/15113 at 172: 19-25;
l 0/29/13 at 46:~ - l 4. Javier rolled down the window and said '"KAB:· Id. at ,17:3-6: l 0/24/13 at
132: 19-24. The K.i\8 circled the block in their vehicle. When they returned, the Defendant was
no longer outsic c. Aaron parked in an alley connecting Castor i\ venue and Neilson Street. /J. at
48:8-14. Christian messaged Benny on Faccbook telling him to come outside: Benny replied that
he already had c ornc outside. Id at -+8: l 5-2L Christian and Dante exited their vehicle and peeked
around lhe corner at the Defendant's home, id. at 49:2-7: l 0/25/14 at l 60: 19-25. I\ minivan
approached fror 1 the or positc end of the alley. Christian and Dante got back in their vehicle.
N.T. 10/25/I-~ at p. 176 The boys prepared to leave. Aaron "as driving: Joshua sat in the front
passenger" s sea : Dante sat behind Aaron: J,nt:cl sat to the riuht of Dante: Christian sat on
- ~ ._. I
Angers lap: Javier sat to the right of Angel and Brandon sat behind Joshua. Id. at pp. 177- 78:
l 0/29/ 14 at 5 U,-22.
2
I\ loose chain wa , found ir the backseat or their vehicle. N. l. I (.!'2-1 13 at I 1.3:5-20. Aaron Marrero test: lied that
he used the chain hr his A.IV and thdL none of tlre t ovs intended to use it as a weapon. Id at 159:2-2..J.
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Aaron Marrero ie stified that the van parked a tcw feet in front of their vehidc'.. N.'1.
l 0/24/13 at pp. 138-39. ·Nhih.: he was looking al the van "waiting Ior somebody to get out." he
saw the Defendant "con: ing out of the al leyway .' hi. at 138::!.1-25: 139: 1-l- l 7. lhe Defendant
approached Iron 1 the right side of their vehic le. Id at 140 '. l +21. The Defendant took
approximately tvvo step: towards their vehicle. "looked right in the front windshield," .. lifted up
his sweater, grabbed his gun, and just started shooting." Id at 141 :3-13: 142:2-<>~ 145: 17-24. The
Defendant did n:n say u vything. id. at ! 42: 13-14. Ile just started shooting at .. the from
windshield on tl.e bouo.n riuht-hand corner .. id al 142: 10-12: 146:2-12. When the Defendant
'°
pulled out the gun. Aaron .. thought he wus roing to say leave. get out of here or something but
he started shoot ng .. ." Id al 144:3-12: J 4(d 1-23.
Aaron te siificd that he drove away as soon :.1$ he heard the first shot. I le ..went straight
out [of] the alleyway bl t on an angle to go around the x au" and then "straight out" towards
Castor Avenue. Id. at l-14~13-24. At no point did he try to run the Defendant over. Nor did he try
to drive in the direction where the Defendant was standing off to the right of their vehicle. Id.
The Defendant 1ever moved .. from the spot where be was when he began firing." id at J 72:5-8.
Aaron testified 'hat he continued to hear shots as he was pulling away. Id. at l 48: 11-13. He heard
glass breaking s nd the other males in the car screaming. ) c!ling. and er) ing, Id at pr. 14 7-48. Ile
heard approximately ni re ( 9) or ten ( 10) shots in total. Id at 149: l lJ-::!.'.2. Aaron further testified
that just before 1e drove out of the nllcyway. the Defendant shot him in the back of his neck. Id
at pp. 148-49.
Brander Hernandez testified that aficr they parked in the alleyway. he got out of their
vehicle and walked to L te sidewalk at Neilson Street. N. I. I 0/25/13 at pp. 18-20. The van pulled
up. He thought hen: were people in the var and that it ,,.,as some sort of setup. so he got back in
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their vehicle. The Defendant approached the r vehicle. took approximmely two ('.?.) to three (3)
steps. reached for his gua. and started shoaling. Id <>: \ 8-24. Brandon heard the
'-' -
sound of broker ulass and gunshots as thev. drove out of the al levw
. av. Id at 27:4-9: ,;
49: 16-18. I le
knew that the Defendant continued to shoot into their vehicle as Lhey drove away because he saw
Aaron get shot in the br.ck ofhis neck. Id at 27:6-1-+.
Angel Rodriguez testified that he saw the Defendant come our from the center of the
alleyway, pull a gun frc m his waist. point it towards their vehicle. and shoot into the front
windshield on tl\! passc ngcrs side. \.T I Oi28!13 at pp. 5-7: J.l.-15. Everyone in their vehicle
ducked. Id at 1 U2-15 At no point did Aaon tr) to drive the car in the direction of the
Defendant. Id , t 16:4-6. As soon as shots v.ere tired, Aaron drove Lo wards Castor A venue. Id. at
17:3-15. Angel continu ed to hear shots as they drove awav. Id While in the alleyway. he never
heard the Defendant sa:1 anything. Id. at 18 6-9. None of the boys said anything to the Defendant.
Id at 18:19-11. All oft re windows were u~· in their vehicle. Id at 18: 12-13.
/\t approximate y 10:JOpm. Philadelphia Police Officer Donycll Thomas was dispatched
to Saine Christopher's Hospital in reference to a report of multiple gunshot victims. ?\:T.
10/24/13 at 90: 7-25. 91: 1-11. /\ radio call lt,r multiple gunshots near Castor Avenue and
Luzerne Street 'vas contemporaneously issi ed. N.1·. 10/25/i 3 at i28:2-16. Officer Thomas
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testified that when he arrived at the front cnt ·,mce or the emergency room. he observed a blue
Toyota Corolla covered .n bullet strikes and filled with "pools of blood." id. at 90: 15-'25. Officer
Timothy Miller :,imilar}~, testified that the ve hicle had "multiple gunshot holes in the back
window, passenger's sic e ofthe vehicle and front window. a large amount or blood in the
backseat and some blood in the front scat." ,'d at 130:3-13.
Philadelphia Police Officer James Manin testified that at approximately l 0:30pm, he
received a radio call for a report of gunshots in the area of Castor Avenue and Luzerne Street.
N.T. 10/24/13 a 252:6-14. When he arrived at the scene. he smelled gunpowder in the alleyway.
Id. at pp. 253-SL. Office r Martin left the scene and drove to Saint Christopher's l Iospital. Once
there, he spoke ·.vith A,ff011 Marrero who str tcd that "he had driven tu that area of Castor and
Luzerne because one or his friends was hav .ng a problem with a male know n as Benny Torres
and that somebc dy shot at then) and he lclt somethinj; and drove ,rnay ... lei. at pp. :258~59.
Philadelohia Po ice Officer Timothy Stephan testified that when he arrived at the crime
scene, he observed mul.iplc spent shell casings just inside of the alleyway in the rear or 4000
Neilson Street. \LT. I 0,28/13 at 95: 19-25. 1~/hilc securing the scene, he received a radio call for
a person with a gun inside ofthe property a: 4030 Neilson Street. Once at that location. Officer
Stephan was mr r by a Hispanic female. Ma ·ia Esquilin. and several juvenile children. including
Benny Torres. 1./. at 96 l 0- l 9.
Officer "srian Slark or the Phi lade Ip 11a Crime Scene Unit tcsti ficd that two (2) copper
jacket fragment, and 1e1 ( 10) 9 millimeter Luger fired cartridge casings (FCC) were collected
from the rear driveway of 15 l l East Luzerr e Street. >J.T. J0/28/13 at 148:10-25: 151:3-14.
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One (I) Winchester 9 m] J lirncier Luger FCC was col leered near the garage door of 4032 Neilson
Street. approxim nely seven (7) feet Irorn the Defendant 's garage. Id at pp. 13 7-38: 151 :3-14:
218:20-25.
During itspectioi orthe vehicle, one (1) 9 millimeter Luger FCC was recovered from the
front passenger 'Cat. t\.~- 10/28113 at 153:11)-14. 166:19-23: 101:H)/13 al 57:7-12. Two (2)
copper jacket th: grnents were recovered frorn under the front passenger seat. N.T. I 0/28114 at
195 :22-25, 196: -10. 13oth fragments had a x hite powder-like substance attached, consistent
with having con- e in contact with glass. N.T. 1 OiJ0/13 at 56: 19-25. 57:7-'J.5: 58: 1-13.
Officer ~tark testified to the bullet holes on the vehicle. KT. 10/28113 at pp. 187-201.
The rear windshield anc backseat windows Jf the vehicle were tinted. id. at 153:5-14. The rest of
the vehicle was not. Id The vehicle had six (6) bullet holes: one in the hood: one in the lower
corner of the frcnt windshield on the passenger's side: two in the rear windshield: one in the
right backseat \\ indow: and one in the right backseat vent window. The hole in the hood of the
vehicle was angled tow.ird the steering wheel, id at 153: 18-25. Ihis indicated that the shot was
fired from the right side olthe vehicle. id The hole in the Iront w indshield corresponded to a
hole in the dashboard. H at pp. l 71 • 72. The hole in the lower right corner or the backseat
window matched a hole near the shoulder a 'ca of the from passenger seal. Id at pp. 178- 79.
Multiple strike marks were observed on the right side of the vehicle. id at p. 193.
Police C Ilicer Norman De Fields from the Firearms Identification Unit of the Philadelphia
Police Dcpartm ent testified to the evidence recovered from the bodies. One ( l) bullet core and
two (2) bullet jz ckets with while powder were recovered from Dante Luuo ·s brain. The white
powder was crushed glass. ~.T 10/30/13 al 62:5-25. 63:~0-25. 64:1-22. lwo (2) full metal
jacket bullets wuh white powder. blood, and tissue \\ ere recox ered from Joshua Soto· s right
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chest and left hu ncrus respectively. Id. al 6~: 17-25. 66: 1- I 3. 6 7: 1-6. One ( 1) bullet jacket was
recovered from: avier Orlandi. s right back. and one ( l) bullet core with white powder, blood and
tissue was recov ered from his left anterior neck. Id at 68: l 1-25, 69: 1-~5. 70: 1-10.
The Medical Examiner, Dr. Edwin Lieberman, testified to the findings of the postmortem
examinations . Joshua Soto died of a gunsho wound to the right side of his back. N.T. 10/29/13
at 207:4-10. Based on the trajectory of the bullet, the business end of the gun would have been
slightly heh ind l.im. off TO the right side, and aimed slightly down. Id. at 192: 17-25. /\ second
gunshot wound o his humerus was observed, Id at 194:24-25. 195:2-9 . Javier Orlandi died as a
result of a gunsl .ot wound 10 his. back. Id at 221 :25. :222:2. The business end of the gun would
have been slightly behind him and off to the right side. Id at 117:2-11. Dante Lugo died as a
result of a gunshot wou rd to his head. Id al 234:21-22. The business end of the gun would have
been behind him, aimec forward. so that the bullet entered the back of his head and passed in a
forward directic n. Id. al 233: 15-22.
Detective Sean .vlellon of the Philadelphia Police Homicide Unit. fugitive Squad testified
that on January 11. 201 ), he received an arrest warrant for the Defendant. N.T. l 0/30113 at
94:17-25. The arrest wz rrant culminated in lhe development otsome information that the
Defendant was staving 1t the Knights Inn ir Trev ose. Pennsylvania." Id at 92: 17-25. Detective.
Mellon and United Stares Marshalls went t« the hotel. They knocked and announced their
presence. The Lefendaut and a Hispanic female looked out the window of their room. Id at pp.
95-96. Detective Mello 1 entered the room. '\tier a brief struggle. the Defendant was taken into
custody. The Hispanic female. later identif :xi as Carol Diaz. was also taken into custody. Id.
The Defendant presented a justification defense. The complaining \A itncsscs conceded
that problems b ~tween · he KAB and ETl3 sartcd in the summer of 201 I. N .T. l 0/}9/13 ut pp.
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34-35. Angel and Christan testified that in June 201 l, their friend Nico was jumped by Benny.
his cousin J.R., s nd other members of the ETl3. N.T. 10/25(13 at pp. 161-7 L 10/29/13 al pp. 34-
42. On the day of that incident. Nico's mother drove some of the KJ\8 to the Dcfcndants home.'
When they arrived, J.R. and other members .if the ETB were standing outside. lhc K/\B got out
of their vehicle r nd the boys started to fistfight. N.T. 1 ll/25/13 at 166: 13-16. Christian and Angel
testified that the fight erded when Maria Esquilin. the Defendant's wife and Benny's mother,
came out of the .iouse s-vinging a 2-by-4. hi at pp. 40-41: 10/25i 13 at 168:3-15.
The Def ndant's wife testified on behalf of the defense. Ms. Esquilin testified that on the
day of the June :!O 11 fight, she beard her neghbor scream her name. N.T. I Oi3 l/l3 at 41 :6-15.
When she looke j outside towards Lycoming Street, she saw .T. R. surrounded by a group of
people trying to tight hi n. There were .. more than twenty kids and adults." Id at 45:2-J. Ms.
Esquilin yelled for .I.R. :Q run. She testified. "When l seen him [ .I.R. I run. he passed by me. 1 ran
right behind hin. and all I sec was ali of these kids on top of al! of these porches lry1ing to hit my
nephew (.1.R.] and one «Imy sons [Benny] was outside." kl. at 42:14 son I Benny]." Id. al 53:2-5.
This prompted Ivls. Esquilin to call Bennvs school. Id. at pp. J 26-27.
; Christian testificc that .losl ua. Angel, and he drove to the Defeudants home N.T. 10,'29 13 at 37:3· 1 l. 1\ngel
testified that Dante. Joshua. Javier, Christian. Nico, Joseph and he d:·m·l' lo the Defendant's home, N.'}. 10125/13 at
162:3-25. .
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Ihc Defendant wok the stand at trial He testi tied about multiple incidents in ml ving
Benny and the l- I sec these guys me coming to
get Benny again." id at 74:19-25, 75:2-14. After talking to Dominic. the Defendant .. put two and
two together that is wh: the car was driving by so slowly going around the block ." Id at 75:2 l-
25; pp. 76-77. I he Defendant told Dominic to tell Ms. Esquilin. I le then went to gel his stepson,
Daniel. who wa : outside in the alley behind their home. lei. at p. 76-79. Daniel went inside.
The Def endant walked "two or three houses down" the alley to borrow a gun from his
friend. Droop. Ji. at pp. 79-80 .:' [TTe] got the gun off Droop and then went back in the house." Id.
at 81 :3- 7. The l iefendant testi tied that the gun he borrowed was a black XD Spri ngficld compact
9 millimeter. Id at l l 9:6-'.24. The Defendant testified: ··My wife made it down to the basement.
She is scrcamin ; to Daniel and all ofus tha: they arc try111g to kill my son. they arc trying to kill
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my son and 1 told her. I said calm clown .... am going to go around and sec what's going on."
Id at 81:9-15.
The Dcfc ndant testified: "I started v, rlking up the driveway. When I walked up the
driveway. as socn as I g~t to the corner of my driveway. l didnt notice what was going on and as
soon as J turned, the car was just directly right there and my first instinct. my reaction my
intentions is from everyiody telling me the car is in the front of the house and I hav e no
recollection that the car was in the back of the house, coming toward the back olrny driveway.
So my first instiict, l was in shock. knowing the car was there because I had no idea what was
going on, and my first reaction was to start shooting al the car." Id at 81:5-15. The Defendant
repeatedly testif eel that his "first instinct wr s to start shooting nt the car." Id at 174: 17-22:
176: 15-20. In a ormal statement to police on January 12, '.Wl 2- the Defendant stated: ··As soon
as I turned the a lcyway they was right there in a car. So my first reaction was to start shooting."
Commonwealth's (CW; Exhibit, 11.
The Defendant conceded on cross-examination that the young males in the car did not
produce a gun. l.nifc, or say anything to the Defendant Id at pp. l 7l-T2. Irrespective of this, the
Defendant immediately started shooting into the hood and lower front passenger side or their
vehicle. Id at 1 ''2: I 7-2,l. He also conceded that when he shot in Lo their vehicle. he saw Joshua in
the front passcn gcr seat Id at 178:'.2-5. On direct examination. defense counsel asked: "When
you saw that car. '"' hy did you pull it out'? ... I he Defendant responded: "Because I was fearful of
not knowing wl at was going on or what their intention was of corning around to the back of my
house. I didn't 1 now what was going on. When I seen the car. there was so many ofthem in
there, I didn't know wh it they was going to do." Id at 84:9-16. "/\s soon as I seen the car, I
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pulled [the gun] out and directly began lo shoot at the car and everything happened in a span or
probably nu more than eight seconds." Id at 84:22-25.
As their vehicleousscd the Defendar.t and drove out of the alleyway. the Defendant
continued to shoot into their vehicle as the Defendant was "backing up ... id. at 86:3-12. During
cross-examination by th: Commonwealth. the Defendant testified:
Q. Sir, d» you have any idea bow Mr, Lugo in the rem seat behind the driver was
shot in the back Jf the head?
J\. No.
Q. Do ye u have any idea how Jade 1)rlandi was shot in the back w bile seated in
the backseat. sir"
A. As I t card from the testimony. it was crowded in the backseat.
Q. Sir, y )U were firing into the backseat as the car was fleeing, werent you. sir?
A. Yes.
Q. Yes, :,-ou were shooting at the car as it was fleeing, weren't you. sir?
A. Yes.
Id. atpp.194-9:,.
The Def mdant recounted that after the shooting, he went back in the house and Droop
took the gun off of him and reloaded it. The Defendant then went upstairs to grab his money and
narcotics. I le came bacl: down, jumped in his sister-in-law' s car, and went to her house. He
remained there .or a little while, and then letl to go lo the Knights Inn where he remained until
his arrest. CW Exhibit, 23.
The Detendants wile testified abou. the shooting. Ms. Esquilin testified that Dominic
told her that sot ie kids were there 10 fight Ecnny. N.T. I 0/~ 1 /13 at 60:2 !-25. When she looked
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outside. she saw a black car in front or their house with the "window down \\ ith a gun out." hi. at
61 :8-12. Ms. Esquilin Ii rthcr testified that there was 3 whole hunch of kids on the corner of her
house. Id. at 61: 18-22. ~ he started scream ing for Dominic and Benny not to go outside. She
heard shots. She called '! l l and told them.·· lhcy are going to shoot my kids. They arc going to
shoot my kids. l lurry up. They arc gl,i ng to d 11 my kids." Id at 63 :8-14.
Ms. Esquilin screamed for the lkkndant who was in the basement of their home. She
testified that the Defendant exited their home Irorn the basement door with a black gun. id at pp.
64-65. Ms. Esqrilin testified that she called 911 before rile Defendant went outside." id. at p. 65.
The Defendant then retuned to their house and told her that he would be right back. The
Defendant ncve: returned that evening. Id at pp. 66-67. Ms. 1-'.squilfn testified that the police
came to their house ten '.10) minutes after tle Defendant left. id at 67:9-12.
Carol Diaz testified on behalf of the defense. Ms. Diaz stated that she lives on Castor
Avenue behind I he Defe-ndants home. :'J.T. I 0/30/J 3 at pp. l 70-72. ln a statement to police. Ms.
Diaz stated that the Defendant is her boyfriend, hut that he is married. Id. at 180: l 2-21. The
Defendant and she wou' d meet on her days off and get a room at a motel. Id at 20-23. On
January 11, 20 I ), the Defendant called Ms. Dia? and asked if she could bring him food and
cigarettes. id. at 174:6-'. 8. Ms. Diaz took a bus to the Defendant. She arrived al the Knights Inn
no more than fifteen mi .iutcs before the police arrived. Id. at 176:8-20. Ms. Diaz testified that she
learned about the shooting on the news. hi. ·lt 186: 19-25. However. in a statement to police, Ms.
Diaz stated that the Defendant told her ··1hai something happened at the corner of the house and
it involved a fig rt between his kids and sorr.c other kids. It was SLHnc kind or fighl over
Facebook." Id ut 186: I 3-16.
~ The 911 transcrip.s reveal hat Ms. Esquilin culled 91 I approximate ly twenty-seven (27 J minutes after the first call
co police dispatch reporting .~unshots. Id at pp. 176-~·,.
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Detective Jeffrey Burke of the Philadelphia Police Department testified that the
Defendant wast rough! nto the homicide ur it by Detective Md Ion and the fugitive taskforce.
N.T. 10/30/13 at 106:J l-15. The Defendant wax advised of his Miranda rights then gave a formal
statement. Id. at pp. l08-27. The Defendant confessed that he shot and killed Javier Orlandi,
Joshua Soro, and Dante Lugo. Id at pp. 118-19.
~l\ALYSJS
Issue I
In his Rt. le 1925(b) statement. the Defendant contends that there was insufficient
evidence as a mutter or aw Lo convict him clFirst Degree Murder because there was no
evidence that he had the specific premeditated intent tu kill. The Defendant i~ essentially
asserting that the ComJT on weal th did not di sprove beyond a reasonable doubt his justi fication
defense.
"There i.: suffici em evidence to sustain a conviction when the evidence admitted at trial,
and all reasonable inferences drawn therefrr m .. viewed in the light most lavorable to the
Commonwealth as verdict-winner, are sufficient to enable the fact-finder to conclude that the
Commonwealth cstablis hcd all of the clements of the offense beyond a reasonable doubt." Com.
v, Morales, 91 /i.Jd 80. 87 (Pa. 2014) (citing Cont. 1·.• \1ctrkmc111. 916 /\.2d 586. 597 (Po. 2007)).
The Commonwculth 1111: y sustain its burden of proof "by means o lw holly circumstantial
evidence." Morales, 91 A.3d al 87.
To susta u a conviction for first-degree murder, the Commonwealth must prove beyond a
reasonable doul t that: (I) a human being was unlawfully killed; (2) the defendant was
responsible for the killing: and (3) the defendant acted with malice and a specific intent Lo kill.
Morales, 91 A.: d at 88: 18 Pa.CS. ~ 2502(a). The j udicially de, eloped phrase "specific intent"
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to kill may be used interchangeably with the statutory language "willful. deliberate. and
premeditated .. tc ex press the same concept. ,:. '0111. ,,_ Simpson, 754 J\.2d l 264, 1269 (Pa. 2000 J.
The requirement of premeditation is met whenever there is a conscious purpose to bring about
death. Com. r. C 'Seara. 352 A.2d 30 (Pa. l 076). ln deciding whether to i11!1.:r specific intent, the
jury should consider all relevant evidence, including the words and conduct ot' the defendant and
the attending cir :um star ces. ( 'um. v Ash. J()4 A.2d -1- 79 { Pa. 1978). Circumstantial evidence can
itself be sufficieit to prr-vc any clement or all of the clements of first-degree murder. Cam. v.
Chamberlain. 3(1 A.3d 381. 394 (Pa.2011 ). Thus. the requisite specific intent to kill can be
established through circ rmstantial evidence such as the use or a deadly weapon on a vital part of
the victim's body. Cum. I'. Diamond, 83 A.3:1 I 19. 126 (Pa. 2013 ): Com. I'. Rega. 933 J\.2d 997.
1009 (Pa. 2007) See N. r. 11/5/13 at 193: 11-17.
Sclf-defe nse or defense of others is r.n affirmative defense to a charge of first-degree
murder. Com. l'. Rivero. 983 J\.2d 1211. 12:'. I ( Pa. 2009}: Com. 1' .. \'i111111ons. 4 75 A2d 1310,
1313 (Pa. 1984) A claim olself-de lense or defense of others (justification) requires evidence
establishing three elements: .. (a) [that the defendant] reasonably believed that be [or another] was
in imminent danger of death or serious bodi.y injury and that it was necessary to use deadly force
against the victi 11 to prevent such harm: (b) th:.11 the defendant \\US free from fault in provoking
the difficulty which culminated in the slayir g: and (c) that the [defendant! did not violate any
duty to retreat." Com. r. Mouuon. 53 A.3d 738, 740 (Pu 2012).
"Although the d rfend ant has no burden to prove self-defense ... before the defense is
properly in issue, there ·nust be some evidence. from whatever source, Lo justify such a finding.
Once the question is properly raised. the burden is upon the Cornrnouwealth Lo prove beyond a
reasonable doubt that the defendant was not acring in [justifiable] self-defense" or defense of
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others. Mouzon, 53 A.3cl al 740 (citing Cum r. Black. J 76 A.2d 627, 630 (Pa. 1977 )). Deadly
force is defined .is "[Ijorce which. under the circumstances in which it is used. is readily capable
of causing death or scric us bodily injury." 13 Pa.C.S. § 50 l.
The Con monwcalth sustains its burden of negation if it proves any of the following
beyond a reason ible doubt: .. that The l defendant J was not free from fault in provoking or
continuing the d fficulr; which resulted in the slaying: that the [defendant] 97)
(evidence sufficient to di: prove self-defense where defendant was near his car and could have
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retreated in complete safety rather than shoot victim in the back as victim was running away).
The Defendant ;: dmittcc that he saw Joshua in the front passenger seat as he shot into their
vehicle. Id at 1: 8:2·5. Aaron was shot in th: back of his neck. The j\·fE concluded that the
business end or· he Dclendants gun would rave been slightly behind Joshua. Javier. and Dante
when they were shot. N.'!'. 10!29!13 at pp. I n-'.234. The ballistics evidence, crime scene
analysis, and fin lings of the medical examir.er are consistent with the Defendant" s statement and
the testimony at trial. Tlcrefore, the Defendants argument is without merit.
Issue II
The Defendant a lcges three instances ofprosecutorial misconduct. A prosecutor's
comments do no amount to reversible error unless the "unavoidable effect or such comments
would be to prejudice the jury. forming in th eir minds fixed bias and hostility toward the
defendant so that they cc uld not weigh the evidence objccti vcly and render a true verdict."
Chamberlain, 30 A.3d at 408.: See Com v. Chester. 587 A.2d 1367. 1378 (P:i. 1991) (holding
that the defendant was not entitled 10 a new i.ial because certain remarks made by the prosecutor
"were not a deliberate attempt to destroy the objectivity of I he fact finder. but merely
summarized the E vidcncc presented at tria] with the oratorical flair permitted during argument"}.
The Defendant asserts that "the Comrnonwcalths closing- argument so inflamed the jury
that they could not rende. · a fai r verdict where the Com monwea Ith· s attorney gave his personal
opinion with respect to tl e guilt of the Defendant by calling him a liar ." There is no evidence in
the trial record th u the District Attorney explicitly referred to the Defendant as a liar. The
relevant portion or the Commonwealth 's closing concerned the contradictory testimony of Maria
Esquilin. N.T. 10,31113 al pp. 6L 141. Ms. Esquilin testified that when she looked outside just
before the shootir g, she saw a black car in th nt or their house with a gun out the window. N.T.
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10/31/13 at 61 :8-12. In her statement to police. Ms. Esquilin stated that when she looked outside.
she did not see anyone. 'd. ar 141 :3- l 0. The Commonwealth argued in closing:
"Barreto gets up there and says that didn't go so well for my wife. J watched it. I
sat here z nd J watched it. So when I take the stand, I better be a little more
reasonable when J try to pull the wor l over people's eyes. Absurd. absolutely
absurd. They are lying about guns. prior guns. It is an attempt to take your eye off
the ball. Let's tal , about thm. Let· st; JI,; about an unreasonable belief' in "lclf-
defense." 1\1.T. 1 c/5113 at 116:2-l-25, l i7:2-12.
The trial court addressed this issue in camera. Id a: pp.163-65. furthermore. Pennsylvania courts
have refused to a.vard a new trial under similar circumstances. ( ·om. ,·. Curpenta. 515 A.2d 531.
536 (Pa. 1986) (denying relier where the prosecutor referred lo the defendant as a "murderer"
who "took the stand and tied"): ( 'oin. "· Jud, '.)78 i\.2d IO 15 (Pa. Super. 2009) (prosecutor's
assertion that defendant lied did not warrant mistrial): see Cum. r. Hanible, 30 A..1d 426 (Pa.
2011).
The Defendant next claims "the Commonwealth improperly shifted the burden or proof
the [sic] Defendant when he commented un the Dcfcndunts failure to call certain witnesses to
trial." See N.T. l l /5/l} a 129:9-25. 130: 1-2. Comprehensive opening and dosing instructions
considered in coniunci ior with the maxim th, 1 "'the Iav, presumes the jury wi 11 tollow the
instructions of the court" neutralize any potcr tial for prejudice. Rcg«. 9]3 A.2d al IO 16: Com. r.
Brown, 786 A .2d 961, 971 (Pa.2001 ). The ju ·y was thoroughly instructed on the relevant lav
and the Common-vealth s burden or proof. N .T. I 0:24/ 13 at pp. 11-26: I l ;5., 1 3 at 178:6-15. T!tc
trial court fully ar d correctly charged the jury alter both sides closed. Id. at pp. 173-~32.
In an abundance c r cautir n, the trial court explicitl'. addressed this issue:
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The Cot rt: "You heard some argurr cnt by Mr. Conroy regarding ~1 witness.
Benny Torres, corumenting on him not testifying in this case. The burden is
always 0.1 the Ccmmonwcahh .. and the Defense, you heard me say over and over
again. ha i no burden to present any evidence. in the case .. .' id. at 2:28: 1- I 2.
Any possible prejudice that may have arisen in the case was cured by the trial courts
instructions. Simrson, 7:;4 A2cl al 1272. The Dcfcndants .. failure to object to the instruction
indicated his sati sfacrion with the instruction." Morris. 5 I 9 J\.2d [It 378. Moreover, even if the
statements were .mproper. they did not have the unavoidable effect of prejudicing the jury.
forming in their I uinds a fixed bias and hosril ity toward the Defendant. Chamberlain. 30 A.3d at
408. Thus, this issue fails.
Defendant lastly nsscrts the Commonwealth "mis-characterized [sic] evidence when he
said that the Defe ndant s.rid that they deserved to be bul!ieu:· A review of the trial record fails ro
support this conte ntion. Counsel may bl'. referring tu testimony evoked on cross-examination of
the Defendant's wife. Specifically. that she admitted to hearing the Defendant say. "They want to
act like men. I arr going o treat them like rnc n." N.T. I 0/31/13 at 186:~-I 0. The Commonwealth
was referring to the Dcfe idants statement in his closing. in which he argued: .. Now. the
Government is gc.. ing to say to you then he executed these young men. I le intentionally shot and
tried to kill each «ne oftl.cse kids and that was his intent. lt was premeditated und that is what he
wanted to do and he was going to treat them as men. that comment that he seized on to talk.
about whatever that mcais .. :· N.T. I J/5/iJ at pp. 52-53. The Commonwealth was merely
reiterating the De .endant s own statement ,.., nh oratorical flair in his argument. Therefore. the
Defcndarus c la int of prosccutnrial misconduct Cai ls.
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co~,'CLUSION
Based on the foregoing, he judgment ol sentence of the trial court should be affirmed.
Rdse Marie DeFino-:\Jasta~i. J.
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