Com. v. Cruz, A. Jr. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ABRAHAM CRUZ, JR. :
:
Appellant : No. 1638 MDA 2019
Appeal from the Judgment of Sentence Entered August 22, 2019
in the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0001343-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2020
Abraham Cruz, Jr. (“Cruz”), appeals from the judgment of sentence
entered following his convictions of two counts of each of first-degree murder,
second-degree murder, and third-degree murder, and one count each of
conspiracy, burglary, and arson.1 We affirm.
This case involves a procedural history spanning several decades. On
the night of August 30, 1980, Cruz, along with his uncle, Erasmo Cruz
(“Erasmo”), Adelberto Andujar (“Andujar”), and Ruperto Garcia (“Garcia”),2
traveled from Harrisburg to the home of Erasmo’s seventeen-year-old ex-
girlfriend, Deborah Patterson (“Deborah”), in Freedom Township, Adams
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1 18 Pa.C.S.A. §§ 2502(a)-(c), 903(a)(1), 3502(a), 3301(a)(1)(i).
2At the time of the murders, Cruz was 19 years old, Erasmo was 23, and
Andujar and Garcia were juveniles.
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County. Upon arriving, they parked their car nearby, on the side of State
Route 15, and prepared several incendiary devices with gasoline and empty
beer bottles. Cruz and his accomplices approached the residence on foot.
Upon reaching the residence, they ignited the incendiary devices and threw
them into the house, which started a fire. They forced their way into the
residence, and once inside, Paul Sell, the husband of Deborah’s mother, Nancy
Patterson (“Nancy”), was shot with a shotgun. Mr. Sell survived his wounds.3
Nancy, Deborah, and two children were able to escape the residence.
However, Nancy was shot and killed in the yard, and Deborah was shot and
killed as she attempted to hide underneath a truck parked outside. Two other
children in the residence were unharmed, and escaped to a neighbor’s house,
where they called police.
Following an initial investigation, Keith Patterson (“Keith”), Nancy’s son
and Deborah’s brother, was arrested and charged with Nancy and Deborah’s
murder. Keith eventually went to trial in 1981, where he was acquitted. The
case went cold until 2008, when police eventually connected Erasmo and Cruz
to the murders.
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3 Mr. Sell died prior to Cruz being charged with the above-referenced crimes.
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After being apprehended in Puerto Rico, Cruz was charged with the
above-referenced crimes in August 2015.4 A lengthy procedural history
followed that is not relevant to the instant appeal. Just prior to trial, Cruz filed
a Motion in limine, seeking, in part, to exclude several photographs depicting
Nancy and Deborah’s bodies from being admitted into evidence, and objecting
based upon his inability to ask potential jurors about such photographs during
voir dire. Following a hearing, the trial court determined that two of the
photographs were admissible.
Cruz’s trial took place on June 3-5, 2019, after which the jury convicted
him of the above-referenced crimes. The trial court deferred sentencing for
the preparation of a pre-sentence investigation report. On August 22, 2019,
the trial court sentenced Cruz to two consecutive terms of life in prison,
without the possibility of parole, for his two first-degree murder convictions.
The trial court sentenced Cruz to a consecutive prison term of five to ten years
for his conviction of conspiracy. For his convictions of conspiracy and burglary,
the trial court imposed prison terms of 10 to 20 years, to be served concurrent
with each other and with Cruz’s conspiracy conviction.5 Cruz filed a post-
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4In 2014, Erasmo and Garcia both entered guilty pleas related to the events
on the night in question, and each testified against Cruz at trial. Andujar is
deceased.
5Cruz’s second-degree murder and third-degree murder convictions merged
with the two first-degree murder convictions for sentencing purposes.
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sentence Motion, which the trial court denied. Cruz filed a timely Notice of
Appeal6 and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Cruz raises three issues for our review:
1. Whether the [t]rial [c]ourt abused its discretion and/or made
an error of law for [sic] admitting graphic photographs depicting
the deceased victims, when said photographs were inflammatory
and unnecessary to explain extraneous evidence[?]
2. Whether the [t]rial [c]ourt abused its discretion and/or made
an error of law when it failed to voir dire the jury regarding graphic
inflammatory photographs depicting the deceased victims[?]
3. Whether the [t]rial [c]ourt abused its discretion and/or made
an error of law when it denied defense counsel’s [M]otion for a
mistrial after redirect examination of [Commonwealth] witness
Wanda Garrison[ (“Garrison”), after t]he [trial c]ourt erroneously
ruled that defense counsel had opened the door to permit the
improper question on redirect examination[?]
Brief for Appellant at 8 (renumbered).
Cruz first argues that the trial court erred in admitting the photographs
of the victims’ bodies into evidence, as they were inflammatory. Id. at 24-
29. Cruz asserts that the prejudicial nature of the inflammatory photographs
outweighed any probative value they had, especially given that Cruz had
stipulated to the manner of death. Id. at 28-29.
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6 We note that Cruz’s timely Notice of Appeal improperly states that the appeal
is from the trial court’s denial of his post-sentence Motion, not the judgment
of sentence. See Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa.
Super. 1995) (stating that a criminal appeal properly lies from the judgment
of sentence). We have corrected the caption accordingly.
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“Our standard of review for a trial court’s evidentiary rulings is narrow,
as the admissibility of evidence is within the discretion of the trial court and
will be reversed only if the trial court has abused its discretion.”
Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. 2014). Our Supreme Court
set out the relevant standard of review for the admission of potentially
inflammatory photographs of the victim:
It has been a steadfast principle of our jurisprudence that pictures
of the victim are not per se inadmissible. In relation to the
admissibility of these photographs, we have promulgated the
following test:
[A] court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has
relevance and can assist the jury’s understanding of
the facts. If the photograph is inflammatory, the trial
court must decide whether or not the photographs are
of such essential evidentiary value that their need
clearly outweighs the likelihood of inflaming the minds
and passions of the jurors. If an inflammatory
photograph is merely cumulative to other evidence, it
will not be deemed admissible.
The admissibility of photos of the corpse in a homicide case is a
matter within the discretion of the trial court, and only an abuse
of discretion will constitute reversible error. As we also explained
…:
A criminal homicide trial is, by its very nature,
unpleasant, and the photographic images of the
injuries inflicted are merely consonant with the
brutality of the subject of inquiry. To permit the
disturbing nature of the images of the victim to rule
the question of admissibility would result in exclusion
of all photographs of the homicide victim, and would
defeat one of the essential functions of a criminal trial,
inquiry into the intent of the actor. There is no need
to so overextend an attempt to sanitize the evidence
of the condition of the body as to deprive the
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Commonwealth of opportunities of proof in support of
the onerous burden of proof beyond a reasonable
doubt. Further, the condition of the victim’s body
provides evidence of the assailant’s intent, and, even
where the body’s condition can be described through
testimony from a medical examiner, such testimony
does not obviate the admissibility of photographs.
Commonwealth v. Robinson, 864 A.2d 460, 501-02 (Pa. 2004) (citations
omitted).
Here, the record reflects that, a few days prior to trial, the
Commonwealth informed defense counsel that it planned to introduce several
photographs of the murder scene at trial. Cruz filed a Motion in limine to
preclude admission of the photographs. After a hearing, the trial court
determined that it would allow the Commonwealth to introduce two black and
white photographs: one depicting Deborah’s body, and the other depicting
Nancy’s body. N.T. (Trial), 6/3/19, at 10.7
The trial court, in admitting the photographs, determined that they were
not inflammatory. Trial Court Opinion, 12/4/19, at 6. Upon our review of the
record, we agree. Our review discloses that the first photograph depicts
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7 The record reveals that two photographs of Nancy and Deborah’s bodies
were introduced at Cruz’s preliminary hearing. Shortly before trial, the
Commonwealth alerted Cruz that it intended to introduce three full-color
photographs: one depicting Nancy’s body, and two depicting Deborah’s body
from different distances. At a hearing on Cruz’s Motion in limine, the morning
the trial was set to begin, the trial court determined that a black and white
photograph of Nancy’s body was admissible, as well as a black and white
photograph of Deborah’s body, taken from further away, as it was less graphic
than the one introduced at the preliminary hearing. N.T. (Trial), 6/3/19, at
8-10.
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Deborah’s body lying face-up, underneath a vehicle, with a dark mark
underneath her head. Commonwealth’s Exhibit 6; see also N.T. (Trial),
6/3/19, at 61 (wherein Commonwealth’s Exhibit 6 was admitted into
evidence). The second photograph depicts Nancy’s body lying face-down in a
grassy area with what appears to be a wound to her upper back.
Commonwealth’s Exhibit 7; see also N.T. (Trial), 6/3/19, at 61-62 (wherein
Commonwealth’s Exhibit 7 was admitted into evidence). Each photograph is
taken from several feet away from the bodies. Neither photograph shows a
close or clear depiction of the injuries to either body; in fact, it is difficult to
discern whether the dark spot beneath Deborah’s head is blood, hair, a
shadow, or part of the vehicle. While it can be easily inferred from the context
of the photographs that Nancy and Deborah are deceased, the trial court’s
determination that the photographs were not inflammatory is supported in the
record. Trial Court Opinion, 12/4/19, at 6.
Because the trial court determined that the photographs were not
inflammatory, the photographs were admissible if relevant, and could assist
the jury in their understanding of the facts. Robinson, supra. Upon review,
we discern no abuse of discretion in the trial court’s decision to admit these
photographs. The record reflects that the trial court carefully weighed the
evidentiary value and relevance of the photographs that the Commonwealth
sought to introduce, and excluded all but two black and white photographs,
finding that they were probative in corroborating witness testimony nearly 40
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years after the murders, and demonstrating intent to kill as a required element
of first degree murder. See Trial Court Opinion, 12/4/19, at 7 (wherein the
trial court states that the photographs were relevant to corroborate
eyewitness testimony and demonstrate Cruz’s specific intent). Additionally,
the trial court issued a cautionary instruction. See N.T. (Trial), 6/5/19, at 363
(wherein the trial court instructs the jury that they “should not … let those
photographs and the nature of those photographs stir up emotions to the
prejudice of [Cruz]. Your verdict must be based on the rational and fair
consideration of all the evidence[,] and not on passion or prejudice against
[Cruz.]”). We presume that the jury follows a trial court’s instruction.
Commonwealth v. Baez, 720 A.2d 711, 735 (Pa. 1998). Accordingly, this
claim fails.
In his next issue, Cruz argues that the trial court abused its discretion
when it failed to properly voir dire the jury about the photographs prior to
trial. Brief for Appellant at 16-17, 29. According to Cruz, the Commonwealth’s
decision to pursue introduction of the photographs shortly before trial, and
after the jury was selected, deprived Cruz of the opportunity to question
potential jurors about the effect that such photographs would have on their
ability to render a fair and impartial verdict. Id. at 29.
“The scope of voir dire rests in the sound discretion of the trial court,
whose decision will not be reversed on appeal absent palpable error.”
Commonwealth v. Karenbauer, 715 A.2d 1086, 1094 (Pa. 1998) (citation
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omitted). “The purpose of voir dire is to ensure the empaneling of a
competent, fair, impartial, and unprejudiced jury capable of following the
instructions of the trial court.” Commonwealth v. Manley, 985 A.2d 256,
264 (Pa. Super. 2009) (citation omitted).
Keeping in mind the foregoing discussion, we discern no palpable error
in the trial court’s decision not to conduct a supplemental voir dire of the jury
as to the photographs. Because the trial court determined that the
photographs were not inflammatory, a supplemental voir dire was
unnecessary. The record reveals no evidence indicating an inability of the
jurors to be fair or impartial in rendering Cruz’s verdict, nor is there any
evidence that the jurors did not listen to the trial court’s cautionary
instructions. See id.; see also Commonwealth v. Bridges, 757 A.2d 859,
872 (Pa. 2000), abrogated in part on other grounds, Commonwealth v.
Freeman, 827 A.2d 385 (Pa. 2003) (determining that the trial court did not
abuse its discretion when it refused to ask potential jurors one of the
defendant’s proposed voir dire questions, when the record showed that the
trial court properly exercised its discretion in ensuring the paneling of a fair
and impartial jury). Accordingly, we discern no abuse of discretion or palpable
error in this regard. See Karenbauer, supra.
In his third issue, Cruz argues that the trial court erred when it denied
his Motion for a mistrial after the redirect examination of Garrison. Brief for
Appellant at 29. According to Cruz, following his cross-examination wherein
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he questioned Garrison about a 2012 interview she had with the Pennsylvania
State Police, the Commonwealth referenced an earlier interview Garrison had
with police in 2009 during its redirect. Id. at 31-33. Cruz argues that the
Commonwealth’s questioning on redirect was improper, as the parties had
previously agreed to narrowly tailor their questioning regarding the 2009
interview. Id. at 30. Specifically, Cruz claims that the trial court erred when
it determined that Cruz had “opened the door” to the disputed questioning in
its cross-examination. Id. at 34. Cruz asserts that the Commonwealth’s
reference to the 2009 interview “created inaccurate inferences about the
content and context of [] Garrison’s statements to police, thus undermining
the truth determining process.” Id. at 33-34.
A motion for a mistrial is within the discretion of the trial
court. Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa.
Super. 2000) (citations omitted). “[A] mistrial [upon motion of
one of the parties] is required only when an incident is of such a
nature that its unavoidable effect is to deprive the appellant of a
fair and impartial trial.” Commonwealth v. Lease, 703 A.2d
506, 508 (Pa. Super. 1997). It is within the trial court’s discretion
to determine whether a defendant was prejudiced by the incident
that is the basis of a motion for a mistrial. Id. On appeal, our
standard of review is whether the trial court abused that
discretion. Stafford, 749 A.2d at 500.
Commonwealth v. Tejada, 834 A.2d 619, 623 (Pa. Super. 2003) (footnote
omitted).
The scope of redirect examination is largely within the discretion of the
trial court. Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117 (Pa. 1981).
When a party raises an issue on cross-examination, it is no abuse of discretion
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for the court to permit redirect on that issue to dispel any unfair inferences.
Id.Garrison testified on behalf of the Commonwealth at trial. Because of a
history of alleged abuse by Cruz against Garrison, the parties agreed, prior to
her testimony, to avoid eliciting any statements by Garrison about the alleged
abuse, unless the defense opened the door on cross-examination. N.T. (Trial),
6/3/19, at 148-49. Specifically, Garrison testified that Cruz had admitted to
her while they were dating in the 1980’s that he had shot and killed Deborah.
Id. at 154-56. On cross-examination, Cruz’s counsel asked Garrison about
Cruz’s level of intoxication when he admitted that he had killed Deborah,
whether Garrison stated as such to police during a September 2012 interview,
and whether she had performed any independent research into the murders
prior to the 2012 police interview. Id. at 156-57. On redirect examination,
the Commonwealth asked the following:
[Commonwealth:] Ms. Garrison, you actually told the police – you
were interviewed in 2012, but you actually told them that a couple
years prior, right? You were first interviewed in 2009 by this
[Pennsylvania State Police] trooper beside me?
[Garrison:] Yes.
[Commonwealth:] Then you had another interview later on where
this trooper was again there along with your attorney in
Mechanicsburg?
[Garrison:] Yes.
Id. at 158. Defense counsel did not object, but requested a sidebar, wherein
the parties discussed how to best approach the issue going forward. Id. at
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159-62. The next day, prior to testimony, defense counsel moved for a
mistrial on the same basis. See N.T. (Trial), 6/4/19, at 198. The trial court
denied the Motion on the grounds that the Commonwealth’s questioning on
redirect was a proper rehabilitation of the witness. Id. at 197-99.
We discern no abuse of discretion in the trial court’s ruling. Our review
of the record discloses that during cross-examination, Cruz’s trial counsel
asked Garrison whether she had researched the murders prior to her interview
with police in September 2012. N.T. (Trial), 6/3/19, at 157. On redirect, the
Commonwealth questioned Garrison about whether she had also been
interviewed by police in 2009. Id. at 158. The Commonwealth sought to
admit this testimony to negate the inference that Garrison had first spoken to
the police in 2012, after she had already independently researched the murder
online. Id. at 158-59 (wherein the Commonwealth states to the trial court at
sidebar, “[Cruz] indicated the first time [Garrison] ever talked to police was
in 2012. She was also interviewed in 2009 … [t]he question I was
rehabilitating on was the first time she talked to the police[.]”); see also N.T.
(Trial), 6/4/19, at 198 (wherein the Commonwealth states, “[t]here was a
question asked of the witness[, ‘]is this the first time you talked to police?[’]
I followed that up with a rehabilitative question, [‘]no, you talked to them in
2009.[’]”). Based upon the foregoing, the jury could not reasonably infer a
history of abuse by Cruz. Because the challenged questions did not impact
the conduct of a fair and impartial trial, this claim fails. See id.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/16/2020
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