Com. v. Figueroa, R. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RENE FIGUEROA, : No. 1355 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, January 23, 2015,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0000620-2013
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 03, 2018
Appellant, Rene Figueroa, appeals from the judgment of sentence
entered by the Court of Common Pleas of Northampton County on
January 23, 2015. After careful review, we affirm.
The trial court provided the following recitation of the facts of this
case:
On the night of December 1, 2012, [appellant] and
[Javier Rivera-Alvarado (“Rivera-Alvarado”)] were at
the Puerto Rican Beneficial Society Club
(“Puerto Rican Club”), a social club located on
East Third Street in Bethlehem, Northampton
County, Pennsylvania. [Appellant] was at the
Puerto Rican Club to watch a boxing match, as were
the following individuals: Yolanda Morales,
[Rivera-Alvarado], Orialis and Angel Figueroa
(“Orialis” and “Angel”),[Footnote 7] and Luis Rivera
(“Rivera”). Orialis, Angel, and Rivera were the
alleged victims of [appellant] and [Rivera-Alvarado]
and are members of the same family. Ms. Morales
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was a friend of the alleged victims’ family. On the
night in question, a shootout between [appellant]
and Orialis occurred at approximately 2:30 a.m. on
the street outside the Puerto Rican Club, resulting in
the death of Ms. Morales and gunshot wounds to
[appellant], [Rivera-Alvarado], Orialis, Angel, and
Rivera. After the shootout, the injured individuals
were transported to the emergency trauma center at
St. Luke’s Hospital. There, Detective Martinez
conducted interviews with a number of the involved
individuals.
[Footnote 7] Orialis Figueroa and
Angel Figueroa are brothers with no
relation to [appellant]. . . .
Trial court opinion, 5/26/15 at 4-5.
The trial court also provided the following procedural history:
[Appellant] has appealed to the Superior Court from
the judgment of sentence imposed on January 23,
2015. Following a jury trial held from September 29,
2014, to October 31, 2014, [appellant] was
convicted of involuntary manslaughter as a
misdemeanor of the first degree,[Footnote 1]
aggravated assault as a felony of the first
degree,[Footnote 2] firearms not to be carried
without a license as a felony of the third
degree,[Footnote 3] and receiving stolen property as
a felony of the second degree.[Footnote 4]
[Footnote 1] 18 Pa.C.S.A. § 2504.
[Footnote 2] [18 Pa.C.S.A.] § 2702(a)(1).
[Footnote 3] [18 Pa.C.S.A.] § 6106(a)(1).
[Footnote 4] [18 Pa.C.S.A.]
§§ 3903(a)(2), 3925.
On January 23, 2015, [appellant] was sentenced to
thirty to sixty months in state prison for involuntary
manslaughter, a consecutive period of 108 to
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216 months in state prison for aggravated assault, a
consecutive period of forty-two to eighty-four
months in state prison for firearms not to be carried
without a license, and a concurrent period of thirty to
sixty months in state prison for receiving stolen
property. In the aggregate, [appellant] was
sentenced to 180 to 360 months in state prison, or
fifteen to thirty years.
On February 9, 2015, [appellant] filed a Notice of
Appeal.[Footnote 5] However, on September 16,
2015, the Superior Court, at docket number 421 EDA
2015, dismissed [appellant’s] appeal because his
attorney failed to file an appellate brief.
Subsequently, [appellant] sought the restoration of
his appellate rights by way of a petition for post-
conviction collateral relief, which the [trial] court
granted in an Order filed on January 13, 2017. The
instant appeal followed.
[Footnote 5] [Appellant] did not file an
optional post-sentence motion pursuant
to Pennsylvania Rule of Criminal
Procedure 720.
On March 30, 2017, [appellant], through new
counsel, filed a “Concise Statement of Errors
Complained of on Appeal Pursuant to Rule of
Appellate Procedure 1925(b)” (“Concise
Statement”)[.]
Trial court opinion, 4/25/17 at 1-2.
Appellant raises the following issues for our review:
1. Whether a mistrial occurred on October 23,
2014 when Detective Fabian Martinez was
questioned by the prosecution about a
co-defendant’s statements suggesting that
appellant was handed a gun by a bouncer
shortly before the shootout. [Notes of
testimony, 10/23/2014, at 140:24 – 141:21]
[This was after the court read a cautionary
instruction to the jury as follows: “Let me tell
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you that any statement that co-[defendant]
made can only be used against co-[defendant].
So with regard to any statements that the
detective relays to you that were made by
co-defendant, you cannot consider them
against appellant.”] [N.T., 10/23/2014,
139:4-11]?
2. Whether a fatal Bruton[1] violation occurred
where Detective Fabian Martinez used
appellant’s name while testifying to
co-[defendant’s] statement and failed to move
for mistrial. [N.T., 10/23/2014, at 141:1 –
147:2] [See opinion of trial court dated
May 26, 2015, page 13.]?
3. Whether the Commonwealth committed
prosecutorial misconduct during the improper
closing remarks that resulted in prejudice to
. . . appellant that could not be cured, and
therefore, warranted a mistrial [statements
excluded at trial during closing N.T.
October 30, 2014 at 263:11 – 263:21 and
properly raised by counsel N.T. October 30,
2014, at 271:23 – 284:10]?
4. Whether the trial court erred in denying a
motion for judgment of acquittal due to the
sufficiency of the evidence where the
Commonwealth did not prove the necessary
element of malice, the mens rea to sustain a
conviction of aggravated assault?
5. Whether the verdict was against the weight of
the evidence where the Commonwealth’s own
evidence at trial established a justifiable
defense of others by self-defense, and
therefore, did not prove its case beyond a
reasonable doubt?
1 Bruton v. United States, 391 U.S. 123 (1968).
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6. Whether the crime of involuntary manslaughter
and aggravated assault merge for purposes of
sentencing. [See Title 42 Pa.C.S.A. § 9765]?
7. Whether the trial court erred in sentencing . . .
appellant pursuant to the deadly weapon
enhancement possessed matrix at 204 Pa.
Code § 303.17(A) where the jury failed to
specifically conclude that . . . appellant used a
deadly weapon in the course of the commission
of a crime. Alleyne v. United States?
Appellant’s brief at 4-5 (full capitalization omitted, bracketed material
appears in original, emphasis supplied).
Before we can begin to address appellant’s issues, we must first reach
a decision on an issue the Commonwealth raised in its brief. The
Commonwealth contends that appellant’s entire appeal should be quashed
for failure to timely file his notice of appeal to this court. (See
Commonwealth’s brief at 7.)
As noted by the trial court, appellant was sentenced on January 23,
2015, and did not file post-sentence motions, electing to file a direct appeal
with this court on February 9, 2015. We dismissed appellant’s appeal at
No. 421 EDA 2015 on September 16, 2015 after appellant failed to file an
appellate brief. In response to a petition filed pursuant to the Post
Conviction Relief Act2 (hereinafter, “PCRA”), the trial court reinstated
appellant’s direct appeal rights nunc pro tunc on January 13, 2017, and
ordered appellant to file a direct appeal to this court within 30 days. On
2 42 Pa.C.S.A. §§ 9541-9546.
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February 17, 2017, four days after appellant’s time to file an appeal
nunc pro tunc expired,3 appellant filed a motion with the trial court seeking
a second restoration of his right to a direct appeal nunc pro tunc, claiming
that appellant’s counsel misplaced the trial court’s January 13, 2017 order.
The Commonwealth did not object to appellant’s direct appeal rights being
reinstated nunc pro tunc. The trial court granted appellant’s motion on
February 17, 2017, and appellant filed notice of the instant appeal on
March 6, 2017.
The Commonwealth contends that appellant’s appeal should be
quashed on jurisdictional grounds. Specifically, the Commonwealth relies on
then-Judge (now Justice) Mundy’s (hereinafter, “Judge Mundy”) dissent in
Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015). In her
dissent, Judge Mundy stated that we “have held that a trial court may not
sua sponte reinstate a defendant’s [] direct appeal rights nunc pro tunc in
the absence of a PCRA petition being filed before the court.” Id. at 87 n.4,
citing Commonwealth v. Turner, 73 A.3d 1283, 1285 n.2 (Pa.Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014).
The case at bar, however, does not involve a trial court improperly
reinstating appellant’s direct appeal rights nunc pro tunc sua sponte.
Rather, appellant filed a motion with the trial court entitled “Motion to Allow
3 February 12, 2017, fell on a Sunday. Accordingly, appellant’s deadline to
file an appeal nunc pro tunc was extended to the following business day,
February 13, 2017. See 1 Pa.C.S.A. § 1908.
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Appeal to the Superior Court Nunc Pro Tunc.” In Turner, the defendant
filed a “Petition to File Superior Court Appeal Nunc Pro Tunc” after his time
for filing a direct appeal had expired. Id. at 1285. We determined that it
appeared that the trial court in Turner treated the defendant’s petition as a
timely first petition filed pursuant to the PCRA, and that the trial court
properly reinstated the defendant’s direct appeal rights. Id. at 1286.
Accordingly, similar to the Turner court, we find that the trial court appears
to have treated appellant’s February 17, 2017 motion as a petition filed
pursuant to the PCRA and properly reinstated appellant’s direct appeal
rights. Therefore, the instant appeal before us was timely filed, and we have
jurisdiction to consider the appeal on its merits.4
4 In candor, this writer has concerns with the timeliness holding in Turner.
In Turner, upon the filing of a timely PCRA petition, the court granted a
direct appeal nunc pro tunc to be filed within 30 days of July 26, 2011.
However, no appeal was thereafter filed, and the court sua sponte
reinstated direct appeal rights nunc pro tunc a second time on August 29,
2011. Again, no appeal was filed; and on April 18, 2012, appellant, through
new counsel, filed a petition to appeal nunc pro tunc, which the court once
again granted. Thereafter, appellant filed the appeal. The Turner court
reasoned that once the original nunc pro tunc relief was granted, appellant
had one year to file the appeal relying on Commonwealth v. Karanicolas,
836 A.2d 940, 944 (Pa.Super. 2003), and Commonwealth v. Lewis, 718
A.2d 1262 (Pa.Super. 1998), appeal denied, 737 A.2d 1224 (Pa. 1999).
My concern is that in both Karanicolas and Lewis, there were nunc pro
tunc direct appeals properly filed within 30 days of the courts’ orders.
Following the decision by this court on the direct appeals, a subsequent
PCRA petition was treated as a first petition. It would seem that to reset the
finality of the judgment of sentence, there must be a direct appeal nunc pro
tunc filed. Here, as in Turner, appellant failed to timely comply with the
initial nunc pro tunc grant, and then sought an additional petition to
request that the rights be reinstated a second time. I believe the
Commonwealth makes a strong argument that the subsequent petition
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I. and II.
In his first two issues on appeal, appellant argues that the trial court
erred in not granting appellant’s motion for a mistrial resulting from
Detective Fabian Martinez’s trial testimony. (Appellant’s brief at 14-21.)
The Commonwealth contends that appellant failed to move for a mistrial at
the time of the testimony in question, thereby waiving the issues on appeal.
(Commonwealth’s brief at 12.)
The Pennsylvania Rules of Criminal Procedure mandate that, “[w]hen
an event prejudicial to the defendant occurs during trial only the defendant
may move for a mistrial; the motion shall be made when the event is
disclosed. Otherwise, the trial judge may declare a mistrial only for reasons
of manifest necessity.” Pa.R.Crim.P. 605(B) (emphasis added).
Here, appellant argues that the trial court should have declared a
mistrial after Detective Martinez improperly used appellant’s name when
testifying about co-defendant Javier Rivera-Alvarado’s5 statements given in
the intensive care unit at St. Luke’s Hospital. (Appellant’s brief at 14-16.)
Appellant specifically cites to the following testimony from the
Commonwealth’s direct examination of Detective Martinez for his contention
that the trial court erred in refusing to grant a mistrial:
should be treated as an untimely PCRA. However, as a panel of this court,
we are bound by the decision in Turner.
5 Mr. Rivera-Alvarado is not a party to this appeal.
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Q: Did [Mr. Rivera-Alvarado] say anything
occurred as he was leaving the club with his
wife?
A: Well, after he made a statement, he was again
advised that we were trying to figure out what
happened, we needed to know everything he
saw.
He did state that, on his way out, one of the
bouncers had come out of a back room and
show [appellant] --
Q: That wasn’t -- that wasn’t --
A: I apologize.
THE COURT: Disregard that statement, ladies and
gentlemen.
MR. MCMAHON: Judge, I want -- I reserve.
Notes of testimony, 10/23/15 at 140-141.
In his brief, appellant argues that his counsel’s statement, “Judge, I
want -- I reserve,” is tantamount to a motion for a mistrial. This argument
is belied by the record. During a conference with the judge shortly after the
above testimony took place, appellant’s trial counsel stated that he was,
“ready to move for a mistrial,” which indicates that he had not yet done so.
(See id. at 145.) Nothing in the record shows that any motion for a mistrial
was made. Accordingly, we find that appellant did not adequately preserve
these issues for appeal, and the issues are thus waived.
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III.
In his third issue for our review, appellant avers that the
Commonwealth committed prosecutorial misconduct during its closing
argument to the jury. Specifically, appellant avers that the trial court erred
by not declaring a mistrial. (Appellant’s brief at 23.) Rather than further
develop an argument, however, appellant stated:
Each Defense Counsel, the Court, and
Commonwealth all went to great lengths to discuss
their position with regard to why a mistrial should be
granted and the Court’s decision to give a curative
instruction. The depth of the discussion is simply too
voluminous to put in the brief at this point.
However, the discussion is incorporated herein by
reference as though specifically set forth herein.
Strategy of the Defense and strategy of the
Commonwealth as well as the Court’s thoughts are
all incorporated.
Id.Our supreme court has consistently held that “‘incorporation by
reference’ is an unacceptable manner of appellate advocacy for the proper
presentation of a claim for relief to [Pennsylvania appellate courts.]”
Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011), cert. denied,
565 U.S. 889 (2011), citing Commonwealth v. Edmiston, 634 A.2d 1078,
1092 n.3 (Pa. 1993). The Pennsylvania Rules of Appellate Procedure further
prohibit any party from incorporating arguments from motions presented at
trial. Id. at 343, citing Commonwealth v. Lambert, 797 A.2d 232,
237 n.4 (Pa. 2001).
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The briefing requirements scrupulously delineated in
our appellate rules are not mere trifling matters of
stylistic preference; rather, they represent a studied
determination by our Court and its rules committee
of the most efficacious manner by which appellate
review may be conducted so that a litigant’s right to
judicial review as guaranteed by Article V, Section 9
of our Commonwealth’s Constitution may be properly
exercised. Thus, we reiterate that compliance with
these rules by appellate advocates who have any
business before [Pennsylvania appellate courts] is
mandatory.
Id.Accordingly, we find that appellant has waived this issue on appeal.
IV.
In his fourth issue on appeal, appellant contends that the
Commonwealth’s evidence was insufficient to establish the malice
requirement for his aggravated assault conviction. We disagree.
In reviewing the sufficiency of the
evidence, we view all evidence admitted
at trial in the light most favorable to the
Commonwealth, as verdict winner, to see
whether there is sufficient evidence to
enable [the fact finder] to find every
element of the crime beyond a
reasonable doubt. This standard is
equally applicable to cases where the
evidence is circumstantial rather than
direct so long as the combination of the
evidence links the accused to the crime
beyond a reasonable doubt. Although a
conviction must be based on “more than
mere suspicion or conjecture, the
Commonwealth need not establish guilty
to a mathematical certainty.
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Commonwealth v. Coon, 695 A.2d 794, 797
(Pa.Super. 1997). Moreover, when reviewing the
sufficiency of the evidence, this Court may not
substitute its judgment for that of the fact finder; if
the record contains support for the convictions, they
may not be disturbed. Commonwealth v. Marks,
704 A.2d 1095, 1098 (Pa.Super. 1997), citing
Commonwealth v. Mudrick, 507 A.2d 1212, 1213
(Pa. 1986).
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder 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. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011),
appeal dismissed as improvidently granted, 54 A.3d 22 (Pa. 2012).
The credibility and weight of the evidence are both matters that are in
the sole purview of the jury. Specifically, when considering whether the
evidence was sufficient to prove each element of each charge beyond a
reasonable doubt, we cannot assume the task of weighing evidence and
making independent conclusions of fact. Commonwealth v. Lewis, 911
A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding
[an appellant’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.” Id.- 12 -
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In order to sufficiently prove beyond a reasonable doubt for an
aggravated assault conviction that a defendant acted with malice by
establishing that while a defendant “did not have an intent to kill, [the
defendant] nevertheless displayed a conscious disregard for an unjustified
and extremely high risk that his actions might cause death or serious bodily
harm.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (internal
quotation marks and citations omitted).
We agree with the trial court’s findings that the Commonwealth
introduced,
sufficient evidence to demonstrate that [appellant]
acted with malice. The uncontroverted evidence
demonstrated that in the early-morning hours of
December 2, 2012, a melee and a gunfight erupted
in the street outside of the Puerto Rican . . . Club in
the City of Bethlehem. The individuals involved in
the melee, many of whom were running back and
forth in and out of the club, numbered in the double
digits. There were two shooters involved in the
gunfight, and [appellant], as he admitted in his
closing argument, was undoubtedly one of them.
([Notes of testimony], 10/30/2014 at 109:19-23.)
At some point during that gunfight, Angel Figueroa
was shot, and the jury concluded that [appellant]
shot him. Under these circumstances, [appellant],
by shooting a gun in the presence of numerous other
people in a darkened city street, certainly
“consciously disregarded an unjustified and
extremely high risk that his actions might cause
death or serious bodily injury . . . [or] could
reasonably anticipate [that] death or . . . serious
bodily injury would likely and logically result.”
Trial court opinion, 4/25/17 at 7, quoting Commonwealth v. McClendon,
874 A.2d 1223, 1229 (Pa.Super. 2005).
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Accordingly, appellant’s fourth issue is without merit.
V.
Appellant next avers that the verdict was against the weight of the
evidence, as the Commonwealth’s evidence established appellant’s argument
of self-defense or defense of others. (See appellant’s brief at 25.)
Challenges to the weight of the evidence must be raised before the trial
court in the form of either a written or an oral motion for a new trial at any
time before sentencing or in a post-sentence motion. Commonwealth v.
Kinney, 157 A.3d 968, 972 (Pa.Super. 2017), appeal denied, 170 A.3d
971 (Pa. 2017), citing Pa.R.Crim.P. 607.
Appellant contends that because his direct appeal rights were restored
nunc pro tunc by the trial court, that Rule 607’s requirement that the issue
be preserved for appeal in either a written or an oral motion is “eviscerated.”
(See appellant’s brief at 26.) Appellant does not point to any authority that
permits him to bypass the requirements of Rule 607 simply because his
direct appeal rights were restored nunc pro tunc. To the contrary,
restoration of direct appeal rights does not automatically preserve any and
all issues that may be raised on appeal. Accordingly, we find that
appellant’s weight of the evidence issue is waived on appeal.
VI.
For his sixth issue on appeal, appellant averred that the trial court
erred by not merging his sentences for aggravated assault and involuntary
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manslaughter. In his brief, appellant concedes that because the two
sentences related to two different victims, the sentences would not merge.
(See appellant’s brief at 28; trial court opinion, 4/25/17 at 8.)
VII.
In his seventh and final issue on appeal, appellant contends that the
trial court sentenced appellant using the deadly weapons enhancement
pursuant to 204 Pa. Code § 303.17(B), and that the deadly weapons
enhancement is unconstitutional in light of the Supreme Court of the United
States’ decision in Alleyne v. United States, 570 U.S. 99 (2013).
Specifically, appellant is challenging the legality of his sentence, by
claiming that the deadly weapons used enhancement is unconstitutional
pursuant to Alleyne, as it required the trial court to determine whether
appellant used a deadly weapon in the commission of the crimes for which
he was convicted. (Appellant’s brief at 29.) Appellant, however, offers little
more than a bald statement that the sentence is illegal because the trial
court relied on the definition of “firearm” contained in 42 Pa.C.S.A. § 9712.
Section 9712 was found to be unconstitutional by this court in
Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa.Super. 2014),
appeal denied, 124 A.3d 309 (Pa. 2015), as a result of the United States
Supreme Court’s holding in Alleyne and our holding in Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).
This argument completely misses the mark.
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Alleyne has no application to the sentencing
enhancements at issue in this case. The parameters
of Alleyne are limited to the imposition of
mandatory minimum sentences, i.e., where a
legislature has prescribed a mandatory baseline
sentence that a trial court must apply if certain
conditions are met. The sentencing enhancements
at issue impose no such floor. Rather, the
enhancements only direct a sentencing court to
consider a different range of potential minimum
sentences, while preserving a trial court’s discretion
to fashion an individual sentence. By their very
character, sentencing enhancements do not share
the attributes of a mandatory minimum sentence
that the Supreme Court held to be elements of the
offense that must be submitted to a jury. The
enhancements do not bind a trial court to any
particular sentencing floor, nor do they compel a trial
court in any given case to impose a sentence higher
than the court believes is warranted. They require
only that a court consider a higher range of possible
minimum sentences. Even then, the trial court need
not sentence within that range; the court must only
consider it. Thus, even though the triggering facts
must be found by the judge and not the jury—which
is one of the elements of an Apprendi[6] or Alleyne
analysis—the enhancements that the trial court
applied in this case are not unconstitutional under
Alleyne.
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super. 2015), vacated
and remanded on other grounds, 149 A.3d 29 (Pa. 2016); see also
Valentine, 101 A.3d at 813 (Gantman, P.J. concurring).
Accordingly, appellant’s sentence is a legal sentence, and appellant’s
seventh issue is without merit.
Judgment of sentence affirmed.
6 Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/18
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