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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIGUEL A. TORRES
Appellant No. 625 MDA 2015
Appeal from the Judgment of Sentence Entered March 9, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0000183-2014
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 21, 2016
Appellant, Miguel A. Torres, appeals from the March 9, 2015 judgment
of sentence imposing life in prison without the possibility of parole for the
murder of his wife, Barbara Torres. We affirm.
The murder occurred on September 12, 2005 in the parking lot behind
the Wachovia Bank branch in Reading, Pennsylvania, where the victim and
Josefa Delosreyes (“Delosreyes”) worked together at adjacent teller desks.
N.T. Trial, 1/26/2015–2/2/2015, at 70-72. Delosreyes and the victim were
conversing on their way to their parked vehicles after completing their work
for the day. Id. at 78. The victim’s vehicle was a white Cadillac Escalade
registered to Appellant and the victim. Id. at 755. Shortly after Delosreyes
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*
Retired Senior Judge assigned to the Superior Court.
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and the victim parted to walk to their respective vehicles, Delosreyes heard
the victim scream, “Mikey.” Id. at 79-80. Delosreyes heard one gunshot
and then observed, in her rearview mirror, the victim attempting to flee. Id.
at 80-81. Instead, the victim fell, and Delosreyes observed Appellant
standing and firing a second shot at close range at the victim’s head. Id. at
82. Delosreyes was acquainted with Appellant, as she had Christmas dinner
with Appellant and the victim in 2004. Id. at 73, 100-01. Delosreyes also
saw Appellant two weeks before the murder. Id. at 73. Appellant departed
from the scene in the Torres’ Escalade. Id. at 83.
Police found the Escalade parked several blocks from the scene of the
murder. Id. at 286. Inside the vehicle was a nine-millimeter handgun
Appellant purchased in 1998. Id. at 758. Forensics testing revealed that
bullet casings found at the scene were fired from that gun. Id. at 350. The
Escalade’s driver’s side door and running board were stained with blood. Id.
at 287-88, 300.
Earlier on the day of the murder, Appellant rented a conversion van
with a sleeper in it. Id. at 534-43. Appellant never returned the van to the
rental car company. Id. at 544. Authorities later found the van abandoned
at LaGuardia Airport in New York. Id. Appellant fled to the Dominican
Republic, where he remained until 2010. Id. at 940-41. In 2010, he moved
from the Dominican Republic to Italy. Id. According to a Dominican
Republic passport and a Dominican Republic voter identification card,
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Appellant assumed the name “Rene Rondon.” Id. at 754-56. Italian
authorities apprehended Appellant in March of 2013. Id. at 749-50. A
Berks County Assistant District Attorney and several United States Marshals
traveled to Italy and took custody of Appellant in November of 2013. Id. In
between the crime and Appellant’s apprehension, Appellant underwent
plastic surgery to change his fingerprints. Id. at 802-03, 938-40. Appellant
also had his nose altered by plastic surgery, and lost significant weight. Id.
at 74, 938-40.
On February 2, 2015, after a lengthy trial, a jury found Appellant
guilty of first and third degree murder, aggravated assault, and related
offenses. On December 17, 2015, the trial court sentenced Appellant to life
in prison without the possibility of parole. This timely appeal followed.
Appellant raises five questions for our review:
1. Whether the trial court erred and/or committed an abuse of
discretion depriving [Appellant] of his right to due process,
his rights under the Confrontation Clause, and/or to a fair trial
by granting the Commonwealths’ Motion in Limine, allowing
the Commonwealth to introduce hearsay evidence of alleged
incidences of domestic abuse or violence through several
witnesses that were extremely prejudicial, outweighed by any
probative value and should not have been admitted and
furthermore the evidence presented at trial exceeded side bar
proffers and the proposed evidence contained in the
Commonwealth’s Motion in Limine?
2. Whether the trial court erred and/or committed an abuse of
discretion depriving [Appellant] of his right to due process,
his rights under the Confrontation Clause, and/or to a fair trial
by allowing the Commonwealth to introduce the contents of a
PFA Petition that was not written by the alleged victim, but in
fact by the alleged victim’s sister concerning alleged
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incidences of domestic abuse or violence that the witness had
no firsthand knowledge of, was the product of hearsay and/or
were extremely prejudicial, outweighed by any probative
value and should not have been admitted?
3. Whether [Appellant] was denied a fair trial by the trial court
allowing the Commonwealth to rehabilitate it’s [sic] witness,
Eugene Deren, who identified the prosecuting police officer as
the person who committed the murder, by further directing
the Commonwealth to pull up Exhibit #26 (a picture of
[Appellant]) again and facilitating a tainted in court
misidentification thereby warranting a new trial?
4. Whether the verdict was against the weight of the evidence
presented by the Commonwealth in their case in chief and
was insufficient as a matter of law to establish [Appellant’s]
guilt beyond a reasonable doubt, given the extremely
contradictory, inconsistent, biased and patently unreliable
testimony of the Commonwealth witnesses who had a vested
interest in the outcome of the trial, failed to identify
[Appellant] as the shooter, and/or established facts that
[Appellant] could not be the shooter, thereby warranting a
judgment of acquittal and/or new trial.
5. Whether the trial court erred and/or committed an abuse of
discretion depriving [Appellant] of his right to due process,
his rights under the Confrontation Clause, and/or to a fair trial
by granting the Commonwealths’ Motion in Limine, allowing
the Commonwealth to introduce hearsay evidence of alleged
incidences of domestic abuse or violence through Josefa
Delosreyes that were extremely prejudicial, outweighed by
any probative value and should not have been admitted.
Appellant’s Brief at 7-8.
In his brief, Appellant analyzes issues one, two, and five together. We
will do the same. Each of these issues challenges the admission of evidence.
Admission of evidence rests within the sound discretion of the trial court,
and we will not reverse absent an abuse of discretion. Commonwealth v.
Flor, 998 A.2d 606, 623 (Pa. 2010), cert. denied, 563 U.S. 941 (2011).
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“[A]n abuse of discretion is not merely an error of judgment. Rather,
discretion is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record.” Id. at
620.
Several deficiencies in Appellant’s brief hamper our review of this
issue. Appellant’s questions presented pertain to a PFA petition the victim’s
sister helped her fill out, Delosreyes’ testimony, and other hearsay evidence.
Appellant cites the Commonwealth’s motion in limine, but he does not
develop any legal argument pertaining to any item in that motion.
Appellant’s Brief at 9. Appellant simply states that a “review of the
Reproduced Record in the case at bar, clearly establishes the improper
admission of evidence regarding [Appellant’s] alleged tumultuous
relationship with Barbara Torres.” Appellant’s Brief at 19. Appellant limits
his legal argument to basic principles of evidence admissibility. Appellants’
Brief at 17-18.1 Appellant does not address the relevance, probative value,
or potential unfair prejudice of any specific evidence.
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1
The Commonwealth argues the victim’s statements were admissible under
the forfeiture by wrongdoing doctrine, citing Giles v. California, 554 U.S.
353 (2008). The trial court relied in part on Crawford v. Washington, 541
U.S. 36 (2004), wherein the Supreme Court held that the Confrontation
Clause prohibits admission of testimonial hearsay from an unavailable
witness. Appellant does not cite either case or develop any argument
regarding these doctrines.
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The Pennsylvania Rules of Appellate Procedure require appellants to
support their arguments with citations to pertinent legal authority and
pertinent portions of the record. Pa.R.A.P. 2119(b) and (c). Failure to do so
results in waiver. Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa.
Super. 2008).
The court will not become the counsel for an appellant, and
will not, therefore, consider issues ... which are not fully
developed in his brief. Failing to provide factual background and
citation to the record represent[s] serious deviations from the
briefing requirements of the Rules of Appellate Procedure.
Because such an omission impedes on our ability to address the
issue on appeal, an issue that is not properly briefed in this
manner is considered waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006) (internal
citations and quotation marks omitted). Appellant’s failure to cite legal
authority and record citations pertinent to any specific evidence renders his
claim unreviewable and waived.
Appellant’s third argument is that the trial court erred in permitting the
Commonwealth to rehabilitate eyewitness Eugene Deren (“Deren”) after
Deren failed to identify Appellant at trial. The record reflects the following:
[Prosecutor]: Sir, the person you saw holding the woman
and holding the gun and the person who drove the Escalade
away, was that the same person or a different person?
[Deren]: Same person.
[Prosecutor]: Do you see that person in the courtroom
today?
[Deren]: Do you want me to just walk over to him? Yeah,
right here.
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[Prosecutor]: This individual here?
[Deren]: Yeah.
[Prosecutor]: Let me show you Commonwealth Exhibit No.
26, sir.
[Defense counsel]: Objection , Your Honor, of him trying
to rehabilitate his own witness.
[Prosecutor]: Well, Judge, under the law you’re allowed to
do that, and it’s certainly not redundant.
The Court: Overruled.
[Prosecutor]: The person in this photo, do you recognize
that person?
[Deren]: That’s the person I really saw. It’s a better
picture of what I saw, without the glasses, you know, the more
body filled up, a little more firm in the face.
N.T. Trial, 1/26/2015–2/2/2015, at 181. Thus, Deren initially identified the
prosecuting police officer as the defendant, and then identified Appellant
from a photograph introduced as Commonwealth Exhibit 26. Deren later
claimed his eyes were watery when he identified the police officer rather
than Appellant. Id. at 184-85. On cross-examination, Deren simply said he
was mistaken. Id. at 186.
Once again, Appellant cites no law in support of his argument,
resulting in waiver under Pa.R.A.P. 2119(b). Appellant seemingly concedes
that the Commonwealth was entitled to refresh Deren’s recollection as to his
prior identification of Appellant (see Appellant’s Brief at 19), but Appellant
argues that the prior identification was tainted because Deren identified
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Appellant only after observing Appellant’s picture in a newspaper. The
record does not support Appellant’s contention:
[Defense Counsel]: Mr. Deren, you don’t know who the
gunman was? You only read something in the newspaper and
that’s who you believe it is?
[Deren]: No, I was there. I saw what happened. I saw
who was there with a gun. [Appellant] is the person with the
gun (indicating). I saw him holding the woman.
N.T. Trial, 1/26/2015–2/2/2015, at 197.
Furthermore, any trial court error was harmless beyond a reasonable
doubt.2 The record evidence in support of Appellant’s guilt is overwhelming.
As summarized above, the record indicates that Delosreyes knew Appellant
and the victim and identified Appellant without any doubt. Furthermore, the
record contains ballistics evidence matching the shell casings to Appellant’s
gun. The record also contains evidence that Appellant rented a conversion
van on the morning of the murder. That van was later abandoned at
LaGuardia Airport. Appellant fled the United States for eight years, living in
the Dominican Republic and then Italy. During that time, he changed his
appearance by losing considerable weight and having plastic surgery on his
nose. Deren did not know Appellant prior to the murder, and Deren
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2
“A harmless error analysis requires a determination by the appellate court
that the uncontradicted evidence of guilt is so overwhelming and that the
prejudicial effect of the error is so insignificant by comparison that it is clear
beyond a reasonable doubt that the error is harmless.” Commonwealth v.
Rasheed, 640 A.2d 896, 899 (Pa. 1994).
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observed Appellant for several seconds. At the time of trial, Deren had not
seen Appellant for eight years, during which time Appellant altered his
appearance through plastic surgery to his nose and significant weight loss.
Appellant’s third argument does not merit relief.
Finally, we must consider Appellant’s challenges to the weight and
sufficiency of the evidence. Appellant offers overlapping arguments on these
doctrines. As we have often explained, a challenge to the sufficiency of the
evidence is distinct from a challenge to the weight of the evidence:
The distinction between these two challenges is critical. A
claim challenging the sufficiency of the evidence, if granted,
would preclude retrial under the double jeopardy provisions of
the Fifth Amendment to the United States Constitution, and
Article I, Section 10 of the Pennsylvania Constitution, whereas a
claim challenging the weight of the evidence if granted would
permit a second trial.
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. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. 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
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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, 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 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. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004)
(quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)).
When the trial court denies a motion for a new trial based on weight of the
evidence, we review the trial court’s decision for abuse of discretion.
Commonwealth v. Rivera, 983 A.2d 1211,1225 (Pa. 2009).
Once again, Appellant’s brief is very short on specifics. He argues that
the Commonwealth’s witnesses were “contradictory, inconsistent, and
biased” without explaining the basis for these assertions. He also does not
explain which element or elements of his convictions the Commonwealth
failed to prove. Appellant’s Brief at 20-22. As we already have explained,
Delosreyes’ eyewitness account, Deren’s eyewitness account, the ballistics
evidence, and Appellant’s subsequent flight are more than sufficient to
sustain his murder conviction. Concerning the weight of the evidence,
Deren’s misidentification at trial and other minor inconsistencies in the
evidence do not support a conclusion that the trial court abused its
discretion in denying Appellant a new trial.
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Since appellant has failed to present any meritorious arguments, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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Com. v. Torres, M.
Combined Opinion