Com. v. Palmero, I. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ISHMAEL PALMERO
Appellant No. 832 EDA 2014
Appeal from the Judgment of Sentence of October 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0011132-2010
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED APRIL 02, 2015
Ishmael Palmero appeals his October 4, 2013 judgment of sentence,
which was entered following his jury convictions of first-degree murder,
possession of an instrument of crime, rape by forcible compulsion, and
sexual assault.1 We affirm.
The trial court summarized the factual history of this sordid case as
follows:
At trial, the Commonwealth and [Palmero] presented evidence,
which when viewed in the light most favorable to the
Commonwealth as the verdict winner, established the following.
[] Lotoya Dupree, the mother of two of [Palmero’s] [12]
children[,] began dating [Palmero] in 2005 when she was 21
years[-]old and [Palmero] was 31 years of age. Although Ms.
Dupree and [Palmero] maintained a turbulent relationship for
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1
18 Pa.C.S. §§ 2502(a), 907, 3121(a)(1), and 3124.1, respectively.
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five years, [Palmero] adopted Ms. Dupree’s oldest daughter and
supported their three children. They lived together until
December 2007, at which time Ms. Dupree moved to 2602
Collins Street and attempted to terminate the relationship with
[Palmero]. Indeed, the two eventually separated in late 2009 or
early 2010, after which in April 2010, Ms. Dupree met and began
dating decedent, Darnell Goode. Thereafter, decedent began
spending nearly every night at Ms. Dupree’s home. However,
[Palmero] was allegedly unaware that Ms. Dupree was dating
someone else until the night of the murder.
On May 31, 2010, two days before the murder, Ms. Dupree
drove to 1714 Folsom Street, [Palmero’s] mother’s home, to
discuss the care of her children. While waiting outside,
[Palmero] watched Ms. Dupree park her vehicle, end a cell
phone call[,] and place her cell phone in her brassiere. As soon
as Ms. Dupree exited the vehicle, [Palmero] approached and
snatched the cell phone from her, causing it to fall to the ground
and break. During this fracas[,] [Palmero] noticed that the
tattoo of his name which was on Ms. Dupree’s neck had been
covered up. [Palmero], in anger, grabbed Ms. Dupree’s neck
and chocked [sic] her while threatening to kill her. Ms. Dupree
managed to get away from [Palmero], return to her vehicle and
drive to a pay phone to call the police.
On Tuesday, June 1, 2010, the day before the murder, Ms.
Dupree and decedent were at her home sitting outside for most
of the day. [Palmero] repeatedly called Ms. Dupree’s landline
and left multiple voice messages pleading for her forgiveness
and apologizing for his behavior. [Palmero] testified that he was
intoxicated and frustrated. Even though Ms. Dupree gave
[Palmero] no reason to believe that she desired to resume a
romantic relationship with him, he adamantly questioned her
sexual behavior and asked if she was sexually involved with
anyone. Despite his entreaties, Ms. Dupree explicitly denied
[Palmero’s] request to come to her home. Later in the evening,
around midnight[,] Ms. Dupree went inside her home to go to
bed and left decedent outside.
At some point [in] the morning of Wednesday, June 2, 2010,
decedent came upstairs and got into bed. Ms. Dupree testified
that she was awaken[ed] by the sound of [Palmero] dropping a
large stone or cement block about [two and a half] feet in
diameter, presumably a cinderblock, on the front right side of
decedent’s head as he lay in bed asleep next to her. She further
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testified that [Palmero] smelled of alcohol when he dropped the
cinderblock on decedent’s face while saying “[y]ou goin’ to die
tonight, bitch.” After [Palmero] dropped the cinderblock on
decedent’s face a second time, Ms. Dupree tried to wake him but
he did not move, instead “his nose started bleeding … and he
started breathing [abnormally]. [Palmero] then stated[,] “That
nigg[a] not waking up. You give a fuck about this nigg[a]?”
Suddenly, [Palmero] pulled a folding knife from his pocket and
stabbed decedent in the stomach. Despite Ms. Dupree’s
attempts to reason with [Palmero] and persuade him to stop, he
repeatedly stabbed and kicked decedent while yelling at Ms.
Dupree[,] “Oh, this the nigg[a] you want?”
[Palmero] then forced Ms. Dupree to feel for decedent’s pulse.
He also exposed decedent’s genitalia while explaining that he
“wanted to see the penis that was going inside of” Ms. Dupree.
Later, [Palmero] threatened to harm Ms. Dupree in the same
manner if she did not have sex with him. He then forced Ms.
Dupree to open her legs, and against her will, inserted his bloody
fingers into her vagina. After [this nonconsensual sexual act],
the two sat in silence until [Palmero] asked[,] “Why did you
make me do this?” He then began to question Ms. Dupree as to
whether she would tell anyone what happened, while expressing
concern about never being able to see his children again. He
again threatened Ms. Dupree and stated that he had to kill her
and himself. Ms. Dupree testified that[,] in order to placate
[Palmero], she assured him that she would not tell on him, but
would be supportive. With the bloody knife in hand, [Palmero]
grabbed the keys to Ms. Dupree’s vehicle and instructed her to
go to the bathroom and wipe the blood from her body. Ms.
Dupree entered the bathroom and appeared to comply[;]
however, she did not remove any traces of the assault. Before
exiting the bedroom, [Palmero] grabbed a chair and dropped it
on decedent’s neck as he lay on Ms. Dupree’s bed, motionless
and no longer breathing.
After Ms. Dupree exited the bathroom, she stood in the hallway
as [Palmero] grabbed a shirt to wrap around the bloody
cinderblock and instructed her to carry it outside. With the knife
still in hand, the two proceeded downstairs where [Palmero]
used his shirt to open the front door and they exited the house.
They both entered Ms. Dupree’s vehicle, and [Palmero] ordered
her to drive to his mother’s house. En route, at [Palmero’s]
instruction, Ms. Dupree pulled the vehicle over to a sewer drain
where [Palmero] exited and kicked the cinderblock until it fell
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down the drain. Upon their arrival at [Palmero’s] mother’s
house, he went downstairs to the basement where he changed
his clothes and gathered some of his belongings. Afterwards,
[Palmero] returned upstairs to the living room and tried to clean
up the cut on his hand and the blood stains [sic] that had
dripped in the house.
When he finished, [Palmero] returned to the living room, and sat
on the couch next to Ms. Dupree. He then asked her
repeatedly[,] “why did you make me do that?... I’ll never see my
kids again.” With the bloody knife still in hand, [Palmero]
stated[,] “what am I going to do? I’m never goin’ to have sex
again.” With the knife still in his hand, [Palmero] forced Ms.
Dupree to have sexual intercourse with him against her will. Ms.
Dupree testified that she contested oral sexual intercourse, but
could not remember whether or not the act actually occurred.
She however distinctly remembered being too scared to scream
for the help of [Palmero’s] mother, father and brother, who were
on the second floor of the house when [Palmero] forced her to
have vaginal sexual intercourse for approximately fiftenn
minutes, while holding the bloody knife in his hand. Thereafter,
[Palmero] instructed her to change clothes, and he placed his
and Ms. Dupree’s bloody clothes in an orange bag. [Palmero]
and Ms. Dupree then left the house and reentered her vehicle at
[Palmero’s] instructions. After stopping for gas, [Palmero]
instructed Ms. Dupree to drive towards the area of Allegheny
[Avenue] and Kensington [Avenue]. [Palmero] discarded the
bloody knife that he used to stab decedent in a dumpster along
the way. Once the vehicle was parked in the area of the
Allegheny [Avenue] and Kensington [Avenue], [Palmero]
expressed his love for Ms. Dupree, then before walking away,
threatened to kill her if she told anyone what happened. Within
moments of [Palmero’s] departure from the vehicle, Ms. Dupree
drove away once he was out of her line of sight.
Ms. Dupree returned home and dialed 911. After officers
arrived, Ms. Dupree was escorted to the police station, and
although she was still fearful, she testified that she felt safe
enough to give detectives a true and accurate account of the
events that occurred, as detailed above. Ms. Dupree was then
taken to the Thomas Jefferson University Hospital where she
underwent a rape kit examination. After the examination [was]
concluded, Ms. Dupree was taken back to the homicide unit,
then to the Philadelphia District Attorney’s Office to record her
statement. Once completed, Ms. Dupree and her children were
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taken to a hotel, where they remained until [Palmero] was
apprehended two weeks later. On June 15, 2010[,] [Palmero]
was arrested at the murder scene with an unauthorized key to
[Dupree’s] house in his possession.
Dr. Samuel Guilino, Chief Medical Examiner, performed an
autopsy on decedent’s body and testified as the
Commonwealth’s expert in the field of forensic pathology. Dr.
Guilino concluded to a reasonable degree of medical certainty
that decedent’s death was caused by blunt impact head trauma
and multiple stab wounds. Decedent received 64 stab wounds in
total to the neck, back, chest, and abdomen, which resulted in a
punctured chest cavity and lungs. Decedent also suffered severe
blunt trauma injury to the head, upper torso, arms, legs and
hands, as well as a fractured cheekbone, a laceration on the eye,
and multiple scrapes and bruising on the cheek, lips, chin,
shoulder and chest. Dr. Guilino concluded to a reasonable
degree of medical certainty that the manner of death was
homicide, with the primary injuries consisting of a fractured
skull, brain damage and a significant amount of bruising and
bleeding to the brain. The absence of defensive stab wounds[]
led Dr. Guilino to opine that decedent was unconscious and
already dying when he received the stab wounds.
The [c]rime [s]cene [i]nvestigators collected multiple bloodstain
samples from [Palmero’s] mother’s house, including ones from
the first floor kitchen wall, [the] steps leading to the second
floor, the dryer in the basement, [Palmero’s] sneaker which was
recovered in the basement, and the front door of the house.
Forensic [s]cientist[,] Lynn Haimowitz[,] testified as the
Commonwealth’s expert in the field of DNA analysis and
examination and concluded to a reasonable degree of scientific
certainty that the DNA samples belonged to [Palmero]. Ms.
Haimowitz also performed an analysis of evidence recovered
from the rape kit of Ms. Dupree, and determined to a reasonable
degree of scientific certainty that the DNA recovered from Ms.
Dupree’s vaginal swab was a mixture of [Palmero’s] DNA, Ms.
Dupree’s DNA, and one additional unknown source[,] which was
identified as skin cell or non-sperm DNA. The additional
unknown contributor was inconclusive regarding whether
decedent was the source. Ms. Dupree’s vehicle was also
examined and it was determined to a reasonable degree of
scientific certainty that DNA recovered [from the vehicle] was a
mixture of decedent’s blood and an unknown contributor. No
murder weapons were presented at trial.
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At trial, [Palmero] testified that he did not recall the incident and
could not specifically remember dropping a cinderblock on
decedent’s head or stabbing decedent 64 times.
Trial Court Opinion (“T.C.O”), 8/13/2014, at 2-8 (footnotes and citations to
notes of testimony omitted).
On October 4, 2013, following a jury trial, Palmero was found guilty of
the above-listed crimes. Palmero was sentenced to life imprisonment
without parole on the murder conviction, and a concurrent seventeen and
one half to thirty-five years’ imprisonment on the remaining convictions.2
On October 10, 2013, Palmero filed a post-sentence motion, which the trial
court denied on February 10, 2014.
On March 12, 2014, Palmero filed a notice of appeal. On March 18,
2014, the trial court directed Palmero to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Palmero
timely filed on April 7, 2014. On August 13, 2014, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a) in response to Palmero’s concise
statement.
Palmero raises the following issues on appeal:
1) Does the omission of the issues concerning the sufficiency of
the evidence to sustain [Palmero’s] conviction for rape and
that this verdict of guilt is against the weight of the evidence
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2
Palmero was found not guilty of burglary, kidnapping, involuntary
deviate sexual intercourse, aggravated indecent assault, intimidation of a
witness, and terroristic threats. See 18 Pa.C.S. §§ 3502, 2901(a)(2),
3123(a)(1), 3125(a)(1), 4952(a)(1), and 2706(a)(1), respectively.
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from the [c]oncise [s]tatement of [e]rrors [c]omplained of on
[a]ppeal result in waiver for purposes of appellate review?
2) Is [Palmero] entitled to an arrest of judgment with regard to
his convictions for murder of the first degree, possessing an
instrument of crime[,] rape[,] and sexual assault since the
evidence is insufficient to sustain the verdicts of guilt as the
Commonwealth failed to sustain its burden of proving
[Palmero’s] guilt beyond a reasonable doubt?
3) Is [Palmero] entitled to a new trial with regard to his
convictions for murder of the first degree, possessing an
instrument of crime, rape[,] and sexual assault since the
verdicts of guilt are against the weight of the evidence?
4) Is [Palmero] entitled to a new trial as a result of the trial
court’s overruling his objections during the prosecutor’s cross
examination of him?
Brief for Palmero at 5-6.
In his first issue, Palmero argues that his weight and sufficiency
challenges regarding his rape conviction should not be considered waived for
appellate review, despite omitting those challenges from his concise
statement. See id. at 5. Palmero acknowledges that he did not include
a weight or sufficiency challenge of his rape conviction in his concise
statement; however, he maintains that this omission was a harmless
mistake. Brief for Palmero at 22-23. Palmero further notes that the trial
court recognized his omission, but nonetheless addressed the weight and
sufficiency of the evidence regarding his rape conviction in its Rule 1925(a)
statement. Id. at 27. Thus, Palmero argues, his “omission does not in any
way hinder appellate review of the issues concerning the sufficiency and the
weight of the evidence concerning the rape conviction.” Id. We disagree.
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Pursuant to Pa.R.A.P. 1925(b)(4)(vii), any issues not raised in a
concise statement will be deemed waived on appeal. See also
Commonwealth v. Thoeun Tha, 64 A.3d 704, 712 (Pa. Super 2013). The
purpose of this rule is to aid trial judges in addressing the issues raised by
an appellant on appeal. Commonwealth v. Otero, 860 A.2d 1052, 1055
(Pa. Super 2004). Although the trial court addressed Palmero’s rape
conviction, it did so only because it found it “practicable to address this issue
because it was raised in the post-sentence motion.” T.C.O., 8/13/2014, at
14-15. When an appellant files a statement of errors complained of on
appeal, issues not included therein are waived, even if the trial court
addresses the issues in an opinion. Commonwealth v. Hardy, A.2d 766,
775 (Pa. Super. 2007). Notwithstanding the fact that Palmero preserved his
weight and sufficiency claims of his rape conviction in his post-sentence
motion, he failed to do so in his concise statement. Further, Palmero offers
no other reason for his omission other than it was an unintentional
oversight. See Brief for Palmero at 23. For the above-mentioned reasons,
Palmero’s challenges to the weight and sufficiency of the evidence regarding
his rape conviction are waived.
In his second issue, Palmero generally challenges the sufficiency of the
evidence developed by the Commonwealth to convict him of all charges. Id.
at 5-6. As stated above, Palmero’s sufficiency claim regarding his rape
conviction is waived. Accordingly, we review the sufficiency of the evidence
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only as to Palmero’s first-degree murder, possession of an instrument of
crime, and sexual assault convictions.
When examining a challenge to the sufficiency of evidence:
The standard we apply . . . 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 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) (quoting
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).
In order for a jury to convict Palmero of first-degree murder, the
Commonwealth must establish that Palmero committed an intentional killing.
18 Pa.C.S. § 2502(a). Intentional killing is defined as “[k]illing by means of
poison, or by lying in wait, or by any other kind of willful, deliberate and
premeditated killing.” 18 Pa.C.S. § 2502(d). “The use of a deadly weapon
on a vital part of the body is sufficient to establish the specific intent to kill.”
Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007). “The chest and
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abdomen house the human body’s chief circulatory and digestive organs, as
well as a network of vital arteries and veins which supply them and, thus,
are vital areas of the body.” Commonwealth v. Briggs, 12 A.3d 291, 307
(Pa. 2011). Moreover, a specific intent to kill may be inferred where the
victim was shot in the head, which is a vital part of the human body.
Commonwealth v. Bedford, 50 A.3d 707, 712 (Pa. Super. 2012). Thus,
we have held that, to sustain a conviction for first-degree murder, the
Commonwealth must prove that a defendant unlawfully killed a victim with
malice and a specific intent to kill. Commonwealth v. Galvin, 985 A.2d
783, 790 (Pa. 2009).
Presently, Palmero argues that the Commonwealth failed to prove
beyond a reasonable doubt the requisite elements of malice and specific
intent in order to find him guilty of first-degree murder. Brief for Palmero at
36. Specifically, Palmero argues that the Commonwealth failed to prove
specific intent and malice beyond a reasonable doubt because, at the time of
the killing, he was intoxicated. Id. at 37-39.
Circumstantial evidence is sufficient to establish a defendant’s intent or
malice. Commonwealth v. Santiago, 980 A.2d 659, 662
(Pa. Super. 2009). Indeed, circumstantial evidence itself is sufficient to
prove any element or all of the elements of criminal homicide. Id. Our
Supreme Court has held that mere evidence of intoxication does not negate
a finding of a specific intent to kill; rather, the defendant must prove that he
was overwhelmed to the point of losing his faculties and sensibilities.
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Commonwealth v. Johnson, 2014 Pa. WL 7392218, *37
(Pa. Dec. 30, 2014). Further, the intimacy that is involved in stabbing one’s
victim to death clearly indicates malice or specific intent. Commonwealth
v. Ballard, 80 A.3d 380, 390 (Pa. Super. 2013).
At trial, Palmero’s former girlfriend, Lotoya Dupree testified that she
witnessed Palmero twice drop a large cinder block on the decedent’s head.
Notes of Testimony (“N.T.”), 9/24/2013, Vol. 1, at 140-43. Dupree further
testified that she witnessed Palmero then stab and kick the decedent several
times. Id. at 140-44. Dupree also testified that, although Palmero smelled
of alcohol, he did not appear to be intoxicated or impaired. Id. at 144-45.
Dr. Samuel Guilino, chief medical examiner of the city of Philadelphia,
performed the autopsy on the decedent, Darnell Goode. Id. at 42-43. Dr.
Guilino opined to a reasonable degree of medical certainty that the cause of
death was blunt impact head trauma and multiple stab wounds. Id. Dr.
Guilino further testified that the decedent received over 60 stab wounds in
addition to numerous lacerations and a fractured skull. Id. at 43-68.
Here, the evidence produced at trial supports a finding that Palmero
was not overwhelmed to the point of losing his faculties and sensibilities
when he killed the decedent. In fact, the evidence demonstrates that, on
June 2, 2010, Palmero was able to catch a bus, carry a cinder block to
Dupree’s house, walk up a set of stairs while carrying a cinder block, and
drop the cinder block twice on the decedent’s head. N.T., 9/26/2013, Vol. 2,
at 177; N.T., 9/24/2013, Vol. 1, at 128-31. The evidence also supports a
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finding that Palmero formed the specific intent to kill when he dropped a
cinder block on the decedent’s head and then proceeded to stab him over
sixty times. Further, the decedent died as a result of the wounds sustained
to his head and other vital parts of the body. N.T., 9/24/2013, Vol. 1, at 42-
43. Viewing all of 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 first-degree murder, notably specific intent and malice,
beyond a reasonable doubt.
Palmero argues in the alternative that, even if the Commonwealth was
able to prove the elements of specific intent and malice beyond a reasonable
doubt, the “Commonwealth did not rebut his claim that he acted in the heat
of the passion at the time that the victim was killed.” Brief for Palmero at
37-39. Whether the provocation by the victim was sufficient to support a
heat of passion defense is determined by an objective test: whether a
reasonable man who was confronted with the provoking events would
become impassioned to the extent that his mind was incapable of cool
reflection. Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012).
In the present matter, Dupree testified that she had ended the
relationship with Palmero several months prior to June 2, 2010. N.T.,
9/24/2013, Vol. 1, at 128. Dupree further testified that, despite Palmero’s
several attempts, she had no desire to reestablish a relationship. Id. at
128-31. Dupree also indicated that the cement block that Palmero used to
strike the decedent was not in her bedroom. Id. at 141-42. Rather, Dupree
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suggested that Palmero retrieved the cement block from a construction site
located near her house. Id. The evidence revealed that Palmero chose in
advance to bring the cement block to Dupree’s house. Palmero acted not in
a sudden fit of passion, but with planning and premeditation. We know of
no heat of passion killing in which the killer happened to be strolling with
cinder block in hand when the passion-provoking event suddenly occurred.
Accordingly, Palmero’s heat of passion claim fails. Moreover, during the
attack, Dupree attempted to convince Palmero to stop, but Palmero
continued to stab the decedent over 60 times. Id. at 143-44. There was
ample evidence to enable a jury to find elements of malice and specific
intent beyond a reasonable doubt. To that end, there is ample evidence to
support a finding that Palmero did not become suddenly impassioned to the
extent that his mind was incapable of cool reflection. Utter barbarism and
brutal murder and rape are not inherently inconsistent with premeditation.
Palmero also challenges the sufficiency of the evidence developed by
the Commonwealth to convict him of possession of an instrument of crime.
Brief for Palmero at 41-42. In order for a jury to convict Palmero of
possession of an instrument of crime, the Commonwealth must establish
that Palmero possessed an instrument of crime with the intent to employ it
criminally. 18 Pa.S.C. § 907(a). An instrument of crime can be defined as
either “[a]nything specially made or specially adapted for criminal use[,] [or]
[a]nything used for criminal purposes and possessed by the actor under
circumstances not manifestly appropriate for lawful purposes it may have.”
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18 Pa.C.S. § 907(d). Specifically, Palmero argues, “[a] large stone or
concrete block do[es] not constitute [an] instrument[] of crime.” 3 Brief for
Palmero at 42. However, Palmero cites no case law to support this claim.
Though a cement block may have many lawful purposes, slamming a
cinderblock twice onto a sleeping victim’s head is not one of them. Dupree
testified, “[a]fter [Palmero] hit him the second time [with the cement block],
his nose started bleeding and I looked, he started breathing funny.” N.T.,
9/24/2013, Vol. 1, at 143. Crushing the head of another with a cement
block is not manifestly appropriate for any lawful purpose that such a block
might have, other than some extreme and rare form of defensive combat
not presented here.
Palmero also challenges the sufficiency of the evidence developed by
the Commonwealth to convict him of sexual assault. Id. at 39-41. In order
for a jury to convict Palmero of sexual assault, the Commonwealth must
establish that Palmero engaged in sexual intercourse or deviant sexual
intercourse with a complainant without the complainant’s consent. 18
Pa.S.C. § 3124.1. Sexual intercourse is “[i]n addition to its ordinary
meaning, includes intercourse per os or per anus, with some penetration
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3
In his brief, Palmero does not argue that the knife that he used to stab
the decedent with was not an instrument of crime. It is quite clear to us
that the knife is also an instrument of crime. See 18 Pa.S.C. § 907(a)
(defining an instrument of crime as anything used for criminal purposes and
possessed by the actor under circumstances not manifestly appropriate for
lawful purposes it may have).
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however slight; emission is not required.” 18 Pa.S.C. § 3101. Deviant
sexual intercourse is defined as “[s]exual intercourse per os or per anus
between human beings . . . . The term also includes penetration, however
slight, of the genitals or anus of another person with a foreign object for any
purpose other than good faith medical, hygienic or law enforcement
procedures.” Id. Palmero argues that the Commonwealth failed to prove
beyond a reasonable doubt that Dupree did not consent to the intercourse.
Brief for Palmero at 41.
At trial, Dupree testified that Palmero, with knife in hand, threatened
to harm her if she would not have sex with him. N.T., 9/24/2013, Vol. 1, at
145-46. Dupree further testified that Palmero forced her to have sex with
him and that she was too fearful to scream for help because he was holding
the knife. Id. at 155-56. Viewing all of the evidence admitted at trial in the
light most favorable to the Commonwealth, the record is amply sufficient to
prove that Dupree did not consent to the intercourse.
In his third issue, Palmero claims that the jury’s verdict on all charges
was against the weight of the evidence.4 Brief for Palmero at 5-6. As
previously discussed, Palmero’s weight claim regarding his rape conviction is
waived. Accordingly, we review the weight of the evidence only as to
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4
Pursuant to Pa.R.Crim.P. 607(A)(3), Palmero preserved his weight
challenge in his post-sentence motion.
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Palmero’s convictions for first-degree murder, possession of an instrument of
crime, and sexual assault.
An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.
Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.
2005), (citing Commonwealth v. Sullivan, 820 A.2d 795, 805–
806 (Pa. Super. 2003), (quoting Commonwealth v. Widmer,
744 A.2d 745, 751–752 (Pa. 2000))). The Pennsylvania
Supreme Court has explained that “[a]ppellate review of a
weight claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the weight
of the evidence.” Widmer, 744 A.2d at 753 (citation omitted).
To grant a new trial on the basis that the verdict is against the
weight of the evidence, this Court has explained that “the
evidence must be ‘so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.’” Sullivan, 820 A.2d
at 806 (quoting Commonwealth v. La, 640 A.2d 1336, 1351
(Pa. Super. 1994)).
[This Court shall not undertake to reassess credibility of
witnesses, as] it is well settled that we cannot substitute our
judgment for that of the trier of fact. Commonwealth v.
Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
finder of fact was free to believe the Commonwealth’s witnesses
and to disbelieve the witness for the Appellant. See
Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
finder of fact is free to believe all, none, or part of the testimony
presented at trial).
Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)
(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))
(citations modified).
To support his weight of the evidence claim, Palmero essentially
reiterates his sufficiency arguments and contends that the Commonwealth
failed to prove his guilt beyond a reasonable doubt. Brief for Palmero at 44.
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While some inconsistencies existed in the testimony produced at trial, the
jury was free to believe, or not to believe, all, none, or part of that
testimony. Having reviewed the record, we conclude that the record
supports the jury’s verdict, and we discern no basis upon which to conclude
that the trial court abused its discretion by concluding that the jury’s verdict
failed to shock that court’s conscience.
In his final issue, Palmero challenges the trial court’s discretion in
overruling his objections during the Commonwealth’s cross-examination of
him. Id. at 6. Specifically, Palmero contends the trial court erred in
overruling his objections when the “prosecutor asked questions of [Palmero]
which assumed that the testimony of Dupree was true when the truth of her
testimony was contested and disputed by [Palmero].” Id. at 51.
Initially, the Commonwealth contends in its brief that Palmero failed to
object properly to the line of questioning that he challenges on appeal, and,
therefore, his issue should be waived. Brief for Commonwealth at 18. The
Commonwealth relies upon the principle articulated in Commonwealth v.
Clair, 326 A.2d 272 (Pa. 1974), to the effect that a party in a criminal
matter may not raise issues of basic and fundamental error upon appeal that
were not properly raised in the trial court. See Brief for Commonwealth at
18. In Clair, the appellant attempted to raise an issue on appeal regarding
improper questioning of a witness, despite failing to raise any objection
during trial. Clair, 326 A.2d at 274. Consequently, the Court in Clair found
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the appellant’s issue waived, providing, “[a] party may not remain silent and
take chances on a verdict and afterwards complain of matters which, if
erroneous, the Court would have corrected.” Id. (quoting Commonwealth
v. Marlin, 305 A.2d 14, 16 (Pa. 1973)). In the present matter, however,
Palmero properly raised an objection during the specific line of questioning
which he challenges. N.T., 9/26/2013, Vol. 2, at 218. Thus, Palmero’s claim
is not waived.
Our standard of review for evidentiary issues is well-settled. “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. Glass, 50 A.3d 720, 724
(Pa. Super. 2012).
In the case sub judice, Palmero asks us to examine the following
events that occurred during his cross-examination:
Q: You don’t remember picking up a cement block and smashing
his head in? You don’t remember that?
A: All I remember asking her: Look what you made me done.
Q: You remember what you said but you don’t remember what
you did?
A: No.
Q: You stabbed him 64 times. You had [Dupree] check to see if
he was still alive. You don’t remember that?
A: No.
Q: You don’t remember making her get off the bed and touch his
cold body? You don’t remember that?
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A: No.
Q: You don’t remember making her pull down his pants to see if
they had sex? You don’t remember that?
A: No.
[PALMERO’S COUNSEL]: Objection
THE COURT: Overruled
Q: You don’t remember that?
A: No.
Q: You don’t remember flipping his body over and stabbing him
more? You don’t remember that?
A: No.
Q: But you remember what you said?
A: Right.
Q: You remember saying: Look what you made me do because
it’s her fault, right?
A: We sat there for hours.
Q: What did you guys talk about? You remember the
conversations. What did you guys talk about?
A: What we going to do.
Q: You remember having a conversation with [Dupree] about
what you were going to do but you can’t remember all the time
it took for 64 stab wounds. Were you tired?
A: No.
N.T., 9/26/2013, Vol. 2, at 217-19.
After a fair reading of the above excerpt, we find no abuse of
discretion. The prosecutor’s line of questioning during Palmero’s cross-
examination challenged the witness’ credibility, which is always relevant and
at issue during trial. See Tecce v. Hally, 106 A.3d 728,731
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(Pa. Super. 2014) (providing that credibility and reliability of witnesses are
determined, by testing in the crucible of cross-examination). Moreover, a
lawyer may discredit a witness by cross-examining the witness about
omissions or acts that are inconsistent with his testimony. Commonwealth
v. Begley, 780 A.2d 605, 627 (Pa. 2001).
At trial, the prosecutor questioned Palmero in order to discredit his
testimony. Despite claiming to have been intoxicated, Palmero provided a
detailed account of June 2, 2010, during his direct examination. See N.T.,
9/26/2013, Vol. 2 at 146-94. As such, the prosecutor questioned Palmero
during cross-examination in order to expose to the jury the inconsistencies
within Palmero’s testimony. See N.T., 9/26/2013, Vol. 2 at 194-230.
Accordingly, the trial court did not abuse its discretion by overruling
Palmero’s objection.
For all of the foregoing reasons, the judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2015
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