Com. v. Ortiz-Lugo, J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JULIO ANGEL ORTIZ-LUGO, : No. 1015 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, April 29, 2015,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0000797-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 01, 2016
Julio Angel Ortiz-Lugo appeals from the judgment of sentence in which
he was sentenced to serve a term of life imprisonment for first degree
murder, was concurrently sentenced to a term of life imprisonment for
second degree murder, and concurrently sentenced to a term of one to five
years for possession of instruments of crime.1 Appellant received credit for
488 days time served. He was also ordered to pay costs of $8,139.75.
On November 16, 2013, Aida Flores (“Flores”), the lessee of 504 Minor
Street in the City of Reading, Pennsylvania, hosted a number of people. Her
son Brandon Troncoso (“Troncoso”); and daughter, Nayaliz Flores; her
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 2502(A), 18 Pa.C.S.A. § 2502(B), and 18 Pa.C.S.A. § 907
respectively.
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boyfriend, appellant; Lizmar Torres (“Torres”); and Juan Carlos Lopez Bonilla
(“Bonilla”). That day, Flores and appellant had a disagreement. Flores told
appellant to leave. (Notes of testimony, 3/16-18/15 at 114-115.) That
evening, Flores invited her nephew, Jaxel Flores, over to have pizza and
spend the night. (Id. at 122.)
At approximately 10:00 or 11:00 p.m., Flores left her house to meet
her godmother and have a few drinks. When she returned home at
approximately 3:00 a.m., only Torres and Bonilla were awake. Torres
prepared some food and then went upstairs to her bedroom where her
children were sleeping. Torres then fell asleep herself. (Id. at 121-123.)
Later, Troncoso woke up Torres, by screaming, “Dundy, what are you
doing here?”2 (Id. at 123.) Apparently, appellant entered the house by
breaking and entering through a bathroom window. Appellant grabbed
Torres’ phone and ran downstairs. Troncoso followed him. After checking
on the safety of her daughter, Torres went downstairs. She saw a bloody
Bonilla on the sofa asking for help. Appellant was no longer in the house,
and the front door was open. (Id. at 127-129.) The police were
summoned. Bonilla soon died. The police interviewed Flores, and she
admitted that appellant was her ex-boyfriend. The videotape of this
interview was subsequently played at appellant’s trial. (Id. at 150.)
2
Appellant was also known as “Dundy.”
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Appellant was arrested and charged with first, second, and
third-degree murder, burglary, two counts of aggravated assault, and
possession of the instruments of a crime.
Appellant’s trial commenced on December 4, 2014. Torres testified
that she came to live with Flores after she was evicted and that she lived on
the third floor of the house. (Id. at 80.) Torres testified that at around
3:00 or 4:00 a.m. on November 17, 2013, she got up to get milk for her
child. She saw appellant and Bonilla fighting in the living room. She did not
see any weapons but noticed that there was blood on Bonilla’s sweatshirt,
appellant’s sweatshirt, and appellant’s left hand. (Id. at 82-84.) The
Commonwealth introduced a videotape of Torres’ interview with the Reading
Police on November 17, 2013, in which she stated that appellant had a knife
which she described and demonstrated a stabbing motion. (Id. at 95.)
Jaxel Flores testified that he was at Flores’ house on the night of the
killing. He went to bed at between 2:00 to 3:00 a.m. (Id. at 36, 39.) He
was awakened sometime later when he heard glass breaking. He then heard
Torres screaming, “Dundy, no, don’t do it.” (Id. at 40-41.)
Troncoso, who was 12 years old at the time of trial, testified that
Bonilla stayed at his house for about three or four days because he was a
friend of appellant’s. Appellant left the house that day because he and
Flores were fighting. (Id. at 53.) That night, Troncoso went to bed in his
mother’s room at approximately 1:30 or 2:00 a.m. He, his sister, and his
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mother were sleeping in that room. He woke up when he heard glass
breaking in the bathroom. Troncoso then saw appellant running downstairs
after appellant took Flores’ phone. (Id. at 55.) Troncoso went downstairs
and saw Bonilla with “blood all over the couch, on him, on his head, his
hair.” (Id. at 58.) Troncoso saw appellant leave and throw a knife down a
drain outside. (Id. at 58.) In the midst of cross-examination, Troncoso
stated, “I want to go. I don’t want to be here no [sic] more.” (Id. at 67.)
After a brief recess, Troncoso continued with his father, Anthony Troncoso,
standing behind him while he was on the witness stand. (Id. at 73.)
Troncoso admitted that when he was interviewed by the police, he did not
mention a knife. (Id. at 76.)
Officer Charles Federico (“Officer Federico”) of the Reading Police
Department testified that he responded to the call for a stabbing at Flores’
residence. When he arrived, Officer Federico saw blood on the front door,
Bonilla lying in a pool of blood, and two adults and five children. Troncoso
told Officer Federico that Bonilla was the victim and that his “mom’s
ex-boyfriend [appellant]” stabbed him. (Id. at 154-156.) Torres told
Officer Federico that appellant and Bonilla had an argument and “he
[appellant] pulled out a knife and began to stab him.” (Id. at 158.)
Other testimony included evidence that blood samples in the bathroom
window, hallway, entrance way at Flores’ house, and along the sidewalk
along the front door of the house were tested for DNA which indicated that
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the blood belonged to appellant. (Id. at 230-237.) Neil Hoffman, M.D.
(“Dr. Hoffman”), a forensic pathologist, testified that Bonilla’s death was
caused by a penetrating stab wound that penetrated between the fifth and
sixth ribs and into the pericardial sac and the left ventricle of the heart. (Id.
at 247-249.) On cross-examination, Dr. Hoffman also testified that the
wounds occurred during the course of a struggle. (Id. at 261-262.)
On March 18, 2015, the jury found appellant guilty of all charges. On
April 29, 2015, the trial court issued its sentence.
On May 8, 2015, appellant filed a post-sentence motion and sought a
new trial and/or arrest of judgment and/or judgment of acquittal. Appellant
alleged the following:
1. The verdicts are contrary to law.
2. The verdicts are contrary to the evidence.
3. The verdicts are contrary to the weight of the
evidence.
4. The evidence was insufficient to sustain the
verdicts of guilty.
5. The verdict of guilty to all counts of the
information is contrary to the law, the
evidence, the weight of the evidence, and the
evidence is insufficient to sustain a verdict of
guilty, and defendant is otherwise entitled to
appropriate legal relief, for the following
reasons:
(a) [Appellant] avers that given the
equivocal and contradictory nature
of the testimony of the witnesses
presented by the Commonwealth,
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unsupported or corroborated by
forensic evidence that the verdicts
as to the homicide/assault are
against the weight of the evidence.
(b) The Commonwealth lacked
sufficient admissible, reliable and
credible evidence of identification
that showed the defendant was in
fact the perpetrator.
(c) [Appellant] avers that the weight of
the evidence may have established
burglary and theft charges and
thus his presence at the scene.
However, the evidence as to his
involvement in the
homicide/assault was undercut
where [,] although [Appellant’s]
blood was all over the house [,]
none was apparently present on or
about the body of the deceased.
Appellant’s post-sentence motion, 5/8/15 ¶¶1-5 at 1-2.
By order dated May 14, 2015, the trial court denied the motion.
Before this court, appellant raises the following issues:
A. Did the trial court err in failing, sua sponte, to
conduct a competency examination for a child
witness under the age of fourteen (14), make
an independent determination of competency
and make a specific finding that the witness
possessed: (1) a capacity to communicate
including both an ability to understand
questions and to frame and express intelligent
answers; (2) the mental capacity to observe
the actual occurrence and the capacity of
remembering what it is that he or she is called
to testify about; and (3) a consciousness of the
duty to speak the truth; thereby undercutting
the truth determining process of the jury trial;
therefore a new trial should be granted?
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B. Did the trial court err in denying Defendant’s
post sentence motion for a new trial as the
verdicts were against the weight of the
evidence, especially in light of the court’s
failure to conduct a competency determination
of the Commonwealth’s most important
witness, a child under fourteen (14) years of
age, and in light of [the] development that
during the child’s testimony the child’s
biological father directing the child off the
stand during cross-examination and was then
allowed to sit with the child after the child
re-took the stand raising issues of undue
influence and taint; therefore a new trial
should be granted?
C. Was there insufficient, competent evidence to
support the verdicts of guilty as to the
homicide counts of the information where the
primary exculpatory witness was a child under
fourteen (14) and no competency examination
was conducted? (Capitalization omitted).
Appellant’s brief at 7-8.
Before addressing the merits of appellant’s arguments, this court must
address the claim of the Commonwealth that appellant waived these issues
when he did not raise them at trial.
Pa.R.A.P. 302(a) provides that only issues properly raised and
preserved in the trial court will be considered on appeal.
This court has long held that “[a] claim which has not been raised
before the trial court cannot be raised for the first time on appeal.”
Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000) (citing
Commonwealth v. Gordon, 528 A.2d 631 (Pa.Super. 1987)).
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Furthermore, it is well established that trial courts must be given an
opportunity to correct any errors when they occur. A party may not
complain of matters at a later time, when the party did not object at a time
when the trial court could have corrected the alleged error.
Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008).
A review of the record reveals that appellant did not request a
competency hearing or otherwise object when Troncoso took the stand.
Further, appellant lodged no objection when the trial court allowed
Troncoso’s father to stand or sit behind him when Troncoso’s
cross-examination resumed after he said that he could not continue.
Appellant also did not raise this issue in his post-sentence motion.
Although the trial court did address the merits of appellant’s claims in
its opinion, the trial court did state, “Additionally, it must be mentioned that
Appellant’s counsel ‘never’ requested a competency hearing for the twelve
(12) year old child witness at ‘any time’ during this case and bears the
consequences of that decision.” (Trial court opinion, 9/10/15 at 6
(emphasis in original).)
We agree with the Commonwealth that appellant failed to properly
preserve his challenge to the testimony of Troncoso. Appellant raises three
issues before this court. All three relate to the issues of whether the trial
court erred when it did not hold a competency hearing and whether
Troncoso’s father should have been permitted to be as close to Troncoso
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during his cross-examination. As a result, appellant has waived all issues
before this court, and we need not address the merits of his appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2016
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