Com. v. Torres-Plaza, J. ( 2020 )

J-S33038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA TORRES-PLAZA :
:
Appellant : No. 1810 EDA 2019
Appeal from the Judgment of Sentence Entered February 7, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000848-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA TORRES-PLAZA :
:
Appellant : No. 1811 EDA 2019
Appeal from the Judgment of Sentence Entered February 7, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000849-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA TORRES-PLAZA :
:
Appellant : No. 1812 EDA 2019
Appeal from the Judgment of Sentence Entered February 7, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000850-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S33038-20
:
v. :
:
:
JOSHUA TORRES-PLAZA :
:
Appellant : No. 1813 EDA 2019
Appeal from the Judgment of Sentence Entered February 7, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000851-2018
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 31, 2020
Appellant, Joshua Torres-Plaza, appeals from the February 7, 2019,
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County following his conviction by a jury on one count of attempted murder
and aggravated assault1 as to Kevin Neibauer (docketed at CP-51-CR-
0000848-2018), one count of simple assault and recklessly endangering
another person2 as to Tene Bennett (docketed at CP-51-CR-0000849-2018),
one count of attempted murder and aggravated assault3 as to Marisela
Rodriguez (docketed at CP-51-CR-0000850-2018), and one count of first-
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901 and 2701, respectively.
2 18 Pa.C.S.A. §§ 2701 and 2705, respectively.
3 18 Pa.C.S.A. §§ 901 and 2702, respectively.
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degree murder and various firearm offenses4 as to Carlos Rodriguez (docketed
at CP-51-CR-0000851-2018). After a careful review, we affirm.
The relevant facts and procedural history are as follows: Following a
shooting spree that began outside of a bar, Appellant was charged with
separate offenses at four lower court docket numbers. The trial court
consolidated the cases, and Appellant, represented by counsel, proceeded to
a jury trial. The trial court has aptly summarized the witnesses and evidence
offered at trial as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia police officers Clyde Frasier, John Yeager, Michael
James[,] and Lawrence Flagler, Philadelphia police sergeant
William Giulian, Philadelphia police detective John Bartol,
Philadelphia deputy chief medical examiner Dr. Albert Chu, [as
well as] Wilson Vargas, Marisela Rodriguez, Kevin Neibauer, Jackie
Neibauer[,] and Tene Bennett. [Appellant] presented the
character testimony of Valerie Santiago and Rafael Torres.
Viewed in the light most favorable to the Commonwealth as the
verdict winner, the evidence established the following.
On October 24, 2017, at 10:24 p.m, [Appellant] arrived at
the Pink Panther Bar at 301 East Allegheny Avenue in Philadelphia.
See N.T. 2/5/2019 at 49-50, 56; N.T. 2/6/2019 at 184[.]
[Appellant] spent several hours at the bar and, throughout the
course of the night, ordered two or three beer buckets containing
six beers each, which he shared with the DJ at the bar. N.T.
2/5/2019 at 141-43. At some point, the decedent, Carlos
Rodriguez [(“Carlos”)], arrived at the bar. [Id.] at 58, 61. Later
in the night, Wilson Vargas [(“Vargas”)], who was the owner of
the bar, was informed that [Appellant] and Carlos were walking
around the tables and bothering people. [Id.] at 50, 56-58. In
response, Vargas approached [Appellant] and Carlos and asked
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4 18 Pa.C.S.A. § 2502. The firearm offenses included carrying a firearm
without a license, 18 Pa.C.S.A. § 6106, carrying a firearm on a public street
in Philadelphia, 18 Pa.C.S.A. § 6108, and possessing an instrument of crime,
18 Pa.C.S.A. § 907.
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them what was going on. [Id.] at 57-58. Carlos appeared to be
heavily intoxicated, but [Appellant] assured Vargas that
[Appellant] was not drunk and that there was no problem at all.
[Id] at 58-59. Eventually, between 15 and 20 minutes before the
bar closed at 2:00 a.m., Vargas told [Appellant] and Carlos that
they needed to leave. [Id.] at 60. [Appellant] started walking
towards the door to leave, but Carlos did not follow. [Id.] Now
near the exit, [Appellant] called several times for Carlos to follow
him and urged him to leave. [Id.] at 61-62. Eventually, Carlos
walked to the door[,] and he and [Appellant] started to leave the
bar. [Id.] at 62-64. As they were leaving, Vargas told Marisela
Rodriguez, who was Vargas’s sister and a server at the bar, to
make sure the door was closed after [Appellant] and Carlos left.
[Id.] at 64-65. Marisela followed [Appellant] and Carlos outside.
[Id.] at 147-48. Seconds after they exited the bar, [Appellant]
pulled out a gun and shot Carlos in the chest from a very close
range. [Id.] at 67, 148-49; N.T. 2/6/2019 at 159-61. [Appellant]
then shot Marisela twice. After being shot, Marisela rushed back
inside the bar. N.T. 2/5/2019 at 150-51. [Appellant] then stood
over Carlos, who was now on the ground, and pulled the trigger
of his gun, but his gun did not fire. See N.T. 2/6/2019 at 118-
19[.]
Marisela was rushed to the hospital where, after extensive
surgery, she recovered from gunshot wounds to her stomach and
colon. N.T. 2/5/2019 at 102-03, 158-61. Carlos, on the other
hand, was pronounced dead shortly after being shot. [Id.] at 187-
88, 192. The medical examiner determined that the cause of
death was a gunshot wound to the chest. N.T. 2/6/2019 at 153.
After shooting Carlos and Marisela, [Appellant] entered his
car and began to flee, but he did not get far. Instead, [Appellant]
crashed his vehicle into a light pole and the steps of a home on
the corner of B and Westmoreland Streets, which is just one block
north of the Pink Panther Bar. N.T. 2/5/2019 at 10-11, 30, 43,
211. Hearing the sound of a car crash from inside their home,
Kevin Neibauer [(“Mr. Neibauer”)] and his wife, Jacqueline
Neibauer [(“Mrs. Neibauer”)], went outside to see if anyone was
injured. N.T. 2/6/2019 at 16-17, 51-52. Mr. Neibauer saw
[Appellant] in the front seat of the crashed vehicle and asked
[Appellant] if he was alright, to which [Appellant] said yes. [Id.]
at 20. While Mr. Neibauer called 9-1-1- to get help for [Appellant],
[Appellant] exited the vehicle, removed the license plate from the
rear of the vehicle, and put the license plate down his pants. [Id.]
at 20, 22, 56, 59. [Appellant] asked Mr. Neibauer if he had called
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the police and, after Mr. Neibauer said that he did, [Appellant]
shook his head and thanked him. [Id.] at 22. Immediately after,
[Appellant] shot Mr. Neibauer in the left side of the neck. [Id.] at
22, 24, 62. The bullet fractured Mr. Neibauer’s jaw, nose and
orbital bone, and exited his forehead. [Id.] at 28-29. He
survived, albeit with blindness in one eye and permanent hearing
loss. [Id.] at 30-32.
After shooting Mr. Neibauer[,] [Appellant] fled on foot.
[Id.] at 62-63. [Appellant] made his way to the area around B
and Clearfield Streets where Tene Bennett [(“Bennett”)] was
smoking a cigarette outside. [Id.] at 131, 134. [Appellant]
walked up to Bennett, pulled out his gun, and held it to Bennett’s
head as he asked her, “did you see me?” and “do you want to go
home?” [Id.] at 135-36. Then [Appellant] pulled the trigger, but
his gun did not fire. [Id.] at 136-37. After [Appellant’s] gun failed
to fire, Bennett ran away and was later able to find the police to
report what had just happened. [Id.] at 138-39.
After receiving a description of [Appellant] from Mrs.
Neibauer, officers patrolled the area searching for [Appellant].
N.T. 2/5/2019 at 218-19, 222. Officers Michael James and
Edward Taylor eventually spotted [Appellant] on the 200 block of
East Clearfield Street attempting to unlock a vehicle with a key.
[Id.] at 211, 223. Officer Taylor ordered [Appellant] to show his
hands[;] but instead, [Appellant] took off running. [Id.] at 223-
25. As [Appellant] began to flee, he discarded his gun on the hood
of the vehicle he was attempting to get into. [Id.] at 225, 227.
Officer Taylor chased after [Appellant][,] and [he] eventually was
able to subdue him and place him under arrest. [Id.] at 225-26.
Trial Court Opinion, filed 9/20/19, at 3-5 (footnote and some citations to
record omitted).
At the conclusion of all testimony and evidence, the jury convicted
Appellant of the offenses indicated supra, and on February 7, 2019, the trial
court imposed a sentence of life in prison for the first-degree murder of Carlos.
The trial court additionally imposed an aggregate sentence of forty years to
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eighty years in prison with regard to Appellant’s convictions as to the
remaining victims.
On February 13, 2019, Appellant filed a timely, counseled post-sentence
motion at each lower court docket number, and on June 13, 2019, the trial
court denied the post-sentence motion. On June 18, 2019, Appellant filed a
timely, counseled appeal at each lower court docket number, and this Court
sua sponte consolidated the appeals. All Pa.R.A.P. 1925 requirements have
been sufficiently met.5
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
I. Was defendant’s conviction for first degree murder against
the weight of the evidence since the evidence clearly
established that the killing in question occurred when
defendant was highly intoxicated?
II. Was the evidence insufficient to sustain defendant’s
convictions since defendant’s intoxication rendered him
incapable of forming the specific intent to kill?
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5 On June 26, 2019, the trial court directed Appellant to file a Pa.R.A.P.
1925(b) statement within twenty-one days of the entry of the order. On July
18, 2019, one day late, counsel filed a Rule 1925(b) statement on behalf of
Appellant. Nevertheless, in its Rule 1925(a) opinion, the trial court addressed
the merits of the issues raised in the untimely Rule 1925(b) statement.
Accordingly, we shall overlook the untimely nature of the counseled Rule
1925(b) statement and proceed to a review of the issues raised on appeal.
See Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc)
(holding counsel’s failure to file a timely Pa.R.A.P. 1925(b) statement
constitutes ineffectiveness per se and where the trial court addresses the
issues in its opinion this Court may overlook the untimeliness without
remanding the matter to the lower court).
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Appellant’s Brief at 3 (suggested answers omitted).
Initially, we shall address Appellant’s second issue in which he
challenges the sufficiency of the evidence supporting his conviction for first-
degree murder.6 Specifically, Appellant contends the evidence reveals that he
was unable to form the specific intent to kill because he was overwhelmed by
alcohol to the point he lost his faculties at the time he shot Carlos.
Accordingly, Appellant suggests that, at most, he was guilty of third-degree
murder as opposed to first-degree murder.
Our standard of review is well settled.
The standard we apply in reviewing the sufficiency of the
evidence 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 prior 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 finder
of fact, while passing upon the credibility of witnesses and the
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6We note “a true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa.Super.
2014) (citation omitted). Accordingly, we shall initially determine whether the
evidence is sufficient to sustain Appellant’s first-degree murder conviction,
and if so, then examine Appellant’s weight of the evidence claim.
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weight of the evidence produced[,] is free to believe all, part or
none of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 542–43 (Pa.Super. 2015)
(citation omitted).
“Evidence is sufficient to sustain a conviction of first-degree murder
where the Commonwealth establishes[, beyond a reasonable doubt,] that: (1)
a human being was unlawfully killed; (2) the defendant is responsible for the
killing; and (3) the defendant acted with malice and the specific intent to kill.”
Commonwealth v. Haney, 634 Pa. 690, 131 A.3d 24, 33 (2015). “A specific
intent to kill may be proved by wholly circumstantial evidence and may be
inferred by the defendant’s use of a weapon on a vital part of the victim’s
body.” Commonwealth v. Miller, 897 A.2d 1281, 1285 (Pa.Super. 2006).
With respect to the diminished capacity defense to first-degree murder,
our Supreme Court has explained:
A diminished capacity defense does not exculpate the defendant
from criminal liability entirely, but instead negates the element of
specific intent. For a defendant who proves a diminished capacity
defense, first-degree murder is mitigated to third-degree murder.
To establish a diminished capacity defense, a defendant must
prove that his cognitive abilities of deliberation and premeditation
were so compromised, by mental defect or voluntary intoxication,
that he was unable to formulate the specific intent to kill.
Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1218
(2006). The mere fact of intoxication does not give rise to a
diminished capacity defense. Spotz, supra. See
Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 653
(2008) (requiring that a defendant show that he was
“overwhelmed to the point of losing his faculties and sensibilities”
to prove a voluntary intoxication defense). Evidence that the
defendant lacked the ability to control his or her actions or acted
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impulsively is irrelevant to specific intent to kill, and thus is not
admissible to support a diminished capacity defense.
Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 312 (2011)
(citations, quotation marks, and quotations omitted).
Generally speaking, “[n]either voluntary intoxication nor voluntary
drugged condition is a defense to a criminal charge.” 18 Pa.C.S.A. § 308.
However, as our Supreme Court has explained: “[e]vidence of substantial
intoxication…[, i]f believed,…may negate the intent to kill necessary for a
conviction of murder in the first degree[.]” Commonwealth v. Rose, 463
Pa. 264, 344 A.2d 824, 826 (1975).
In the case sub judice, viewing the evidence in the light most favorable
to the Commonwealth, as verdict winner, the evidence reveals Carlos was
unlawfully killed and Appellant is responsible for the killing. Haney, supra.
Moreover, Appellant’s specific intent to kill may be inferred from the fact he
fired a bullet into Carlos’s chest from a very close range. Miller, supra.With regard to Appellant’s diminished capacity (voluntary intoxication)
defense, the trial court relevantly indicated the following:
Here, there was ample evidence to support the decision of
the jury to reject the voluntary intoxication defense and find that
[Appellant] acted with specific intent to kill. First, there was
substantial evidence that [Appellant] was not heavily intoxicated
at the time of the murder. While Marisela Rodriguez, who was
[Appellant’s] server while he was at the Pink Panther Bar, testified
[Appellant] ordered two or three beer buckets containing six beers
each, he shared the beer with the DJ at the bar. N.T. 2/5/2019
at 141-43. Moreover, [Appellant] consumed this alcohol in the
span of approximately 3 to 3½ hours between 10:30 p.m., when
he arrived at the bar, and shortly before the bar closed at 2:00
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a.m., when he left. [Id.] at 60; N.T. 2/6/2019 at 184. In
addition, a blood test taken nearly 14 hours after the shooting
indicated no presence of alcohol in [Appellant’s] blood. See N.T.
2/6/2019 at 220. While the parties stipulated that the blood test
showed the presence of cocaine, there was no expert testimony,
nor any other evidence, offered to suggest that [Appellant] could
have been intoxicated from that quantity of cocaine….
In addition, Wilson Vargas, the owner of the bar, testified
that when he spoke with [Appellant] and the decedent to
determine if they needed to leave the bar, [Appellant] informed
him that he was not drunk and, therefore, did not need to leave
the bar. N.T. 2/5/2019 at 59. According to Vargas, when he
finally told [Appellant] and the decedent that they needed to leave
the bar, [Appellant] cooperated and started to leave. [Id.] at 60.
Additionally, Marisela testified that [Appellant] seemed normal
and that[,] although he had consumed several beers throughout
the night, he did not seem heavily intoxicated and she had no
issues communicating with him. [Id.] at 145-46.
[Appellant’s] actions after shooting both the decedent and
Marisela also demonstrated that [Appellant] did not lack his
faculties and sensibilities from intoxication, but instead, that
[Appellant] understood what he had just done and that he needed
to flee….Although [Appellant] crashed his vehicle approximately
one block away from the bar, surveillance footage showed that
[Appellant] used his turn signal when he turned at the intersection
of B and Westmoreland Streets. [Id.] at 10; N.T. 2/6/2019 at
185-86. Further, Kevin Neibauer, who interacted with [Appellant]
after [Appellant] crashed his car, testified that [Appellant] shook
his hand and thanked him for calling the police for help just
moments before [Appellant] shot him in the side of the neck. N.T.
2/6/2019 at 22. Jacqueline Neibauer testified that she saw
[Appellant] remove the license place from the rear of the vehicle
and put the license plate down his pants. [Id.] at 56, 59. By
removing the license plate from the get-away car after the
accident, and shooting Mr. Neibauer, [Appellant] demonstrated
that he was able to purposefully take steps to prevent himself
from being apprehended for the murder. These actions were
inconsistent with being so intoxicated that he had lost his faculties
and sensibilities.
The evidence also established that after shooting Mr.
Neibauer [Appellant] continued his deliberate efforts to conceal
himself and flee. Tene Bennett testified that[,] in the area around
B and Clearfield Streets, [Appellant] approached her, held a gun
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to her head, and asked her, “did you see me?” and “do you want
to go home?” [Id.] at 135-36. According to Bennett, [Appellant]
pulled the trigger of the gun but the gun again failed to fire, and
she was able to escape. [Id.] at 136-39. Officer Michael James
testified that he and his partner, Officer Edward Taylor, spotted
[Appellant] on the 200 block of East Clearfield Street attempting
to unlock a vehicle with a key. N.T. 2/5/2019 at 211, 223. Officer
James further testified that when Officer Taylor ordered
[Appellant] to show his hands, [Appellant] discarded his gun on
the hood of the vehicle he was attempting to get into and began
to flee. [Id.] at 223-25. According to Officer James, he and his
partner were finally able to apprehend [Appellant] and end his
crime spree. [Id.] at 225-26. All of this was compelling evidence
that [Appellant] was not overwhelmed by intoxication.
***
[Furthermore,] after shooting the decedent, [Appellant]
shot the only eyewitness to the shooting, Marisela. [Id.] at 150.
Trial Court Opinion, filed 9/20/19, at 7-10 (some citations to record omitted).
We agree with the trial court’s sound reasoning, and under the
appropriate standard of review, the evidence does not reveal that Appellant
was so intoxicated that he was overwhelmed to the point of losing his faculties
and sensibilities. Hutchinson, supra. Appellant does nothing more than
present the fact of intoxication as evidence that he lacked the specific intent
to commit first-degree murder. However, “the mere fact of intoxication is not
sufficient to support a diminished capacity defense.” Id. at 313 (citations
omitted). Thus, there is no merit to Appellant’s sufficiency of the evidence
claim.
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Appellant next argues the jury’s verdict convicting Appellant of first-
degree murder is against the weight of the evidence. 7 Specifically, Appellant
argues the jury’s finding that he had the specific intent to kill Carlos shocks
one’s sense of justice in light of the evidence Appellant was intoxicated and
incoherent. In this vein, Appellant contends he “was so intoxicated that he
was incapable of negotiat[ing] a simple left-hand turn while driving and was
running into stop signs while walking.” Appellant’s Brief at 10.
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation
omitted). Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa.Super. 2000). It is well-settled that we cannot substitute our
judgment for that of the trier of fact. Talbert, supra.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.
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7Appellant adequately preserved his weight of the evidence claim in the lower
court. See Pa.R.Crim.P. 607.
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Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (quotation marks and quotation omitted).
Here, the trial court rejected Appellant’s weight of the evidence claim,
and we find no abuse of discretion in this regard. Talbert, supra. We note
the jury was free to determine the weight and inferences to be drawn from
Appellant’s failure to negotiate a left-hand turn while driving, as well as his
running into stop signs while walking. To the extent Appellant requests that
we re-weigh the evidence and assess the credibility of the witnesses presented
at trial, we decline to do so as it is a task that is beyond our scope of review.
See Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013)
(stating that “[a]n appellate court cannot substitute its judgment for that of
the finder of fact”).
For all of the foregoing reasons, we affirm.
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/20
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