Com. v. Maldonado

Citation494 A.2d 402,343 Pa.Super. 154
PartiesCOMMONWEALTH of Pennsylvania v. David MALDONADO, Appellant. COMMONWEALTH of Pennsylvania v. Samuel MALDONADO, Appellant.
Decision Date28 June 1985
CourtSuperior Court of Pennsylvania

Daniel H. Green, Philadelphia, for appellant (at 206).

Leonard Zack, Philadelphia, for appellant (at 492).

Sandra Adler, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.

MONTEMURO, Judge:

This is a consolidated appeal from the judgments of sentence. The appellants, David and Samuel Maldonado, are brothers.

Appellants were tried before the Honorable Charles L. Durham of the Court of Common Pleas of Philadelphia sitting without a jury.

Each appellant was found guilty of second degree murder, 1 criminal conspiracy, 2 robbery, 3 and possession of instrument of crime. 4

Following the denial of post-trial motions, each appellant received the same sentence, namely, life imprisonment for second degree murder and a concurrent sentence of five to ten (5-10) years for criminal conspiracy. 5

Both appellants say that the trial court erred (a) in refusing a request for a view of the crime area, and (b) in refusing to order a mistrial when it was clear that the prosecution had violated the court's order of sequestration of witnesses. We are convinced from our own independent review of the entire record of each appellant, including the briefs of counsel, that these claims are completely without merit. The trial judge had adequately addressed these issues and properly dismissed them.

Appellant, David Maldonado, also argues in this appeal that Section 3701, Subsection (a)(2) of the Pennsylvania Crimes Code should be struck down as unconstitutional because of vagueness. However, since this claim of error was never raised in appellant David Maldonado's post-verdict motions, it is waived and will not be considered. Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 240-41 (1983). Commonwealth v. Gravely, 486 Pa. 194, 198-99, 404 A.2d 1296, 1297-98 (1979).

Both appellants, albeit for different reasons, assert that the evidence was insufficient to prove beyond a reasonable doubt that appellant had committed a robbery and a theft; hence, a conviction of second degree murder under the felony-murder rule was improper. 6

Appellant David Maldonado also argues that the evidence was insufficient to support a finding of guilty as to the crimes of criminal conspiracy and possession of instrument of crime.

In reviewing a motion in arrest of judgment, whether the finder of fact is a jury or a judge sitting without a jury, "the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove. See, Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65, 93 A.L.R.2d 616 (1959), and Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). Also, in passing upon such a motion, all evidence actually received must be considered, whether the trial rulings therein were right or wrong." Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (emphasis in original); accord; Commonwealth v. Winebrenner, 439 Pa. 73, 77-78, 265 A.2d 108, 111, (1970); Commonwealth v. Parker, 305 Pa.Super. 516, 524, 451 A.2d 767, 770-71 (1982).

"In testing the sufficiency of the Commonwealth's evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient." Commonwealth v. Herman, 271 Pa.Super. 145, 148-49, 412 A.2d 617, 619 (1979).

Considered in the light of the above mentioned standards, tests and principles, the salient facts are as follows:

On August 13, 1980, on a warm summer afternoon, Anthony Gustaitis (Anthony), 7 his sister Mari, David Lightey and Patty Garwood went to the Devil's Pool area of Valley Green Park in the City of Philadelphia for a picnic. During the course of the afternoon they met Steven Monahan (the decedent), 8 his sister Noreen, Sophia Hartell and her boyfriend, Mark Miller. These two groups of young people, previously unacquainted, socialized for several hours. At approximately 6:00 p.m., the appellants David and Samuel Maldonado, Jesus Lisojo (Jesus), and Elvin Maldonado (Elvin), all young hispanic males, 9 arrived on the scene and were invited to join the others. For some hours, until approximately 8:00 p.m., these young people entertained themselves by swimming, drinking beer, smoking "joints" and singing while Mark Miller played the guitar.

At about 8:30 p.m., David Lightey, Noreen, Mari and Patty had left the scene to get more beer and cigarettes. Elvin, apparently in the course of maneuvering over the rocks to get to the swimming hole, sprained his ankle and returned to his car which was parked in the parking lot adjacent to the Canoe House located near the picnic area. He was assisted by Jesus and the appellants, Samuel and David. While at the car, Elvin heard Jesus and the appellants say they were going to take the "white kids' box." Elvin saw that they were each armed with a steak knife which he heard them say they had already stolen from the box. Elvin fell asleep in his car while Jesus and the appellants returned to the picnic area.

Anthony, who had remained at the picnic area with the decedent, Mark Miller and Sophia, testified that suddenly, appellant Samuel Maldonado seized the box containing items belonging to Anthony's group and began to run away, followed by appellant David Maldonado and Jesus. After about ten seconds, Anthony gave chase. At first, the decedent just sat there, but then after several moments, he joined Anthony in the chase.

Moments later Anthony saw appellant Samuel Maldonado sitting on a log and going through the box. The log was about 60 feet from the picnic scene. When Anthony caught up with Samuel, he grabbed him by the shirt but his brother, appellant David Maldonado, pushed him off, knocking him to the ground. Anthony said that when he grabbed Samuel by the shirt, at that time or just prior thereto, he saw Samuel discard the box. He was not sure where this took place and that Samuel didn't throw the box but "like kept it." From the record, while it is not clear whether the decedent saw the box being discarded, the evidence seems to indicate that the box had already been discarded when he caught up to Anthony at the log. (N.T. at 62, 65, 66) As soon as appellant David Maldonado had pushed Anthony off, they continued to flee the scene.

Anthony and the decedent took up their pursuit and Anthony said that at no time during the chase did he ever speak to the decedent. They pursued appellants along a track which led to the parking lot. The Canoe Club is located adjacent to the parking lot and when they arrived there, they went in different directions, the decedent going behind the Canoe Club 10 building and Anthony going along the path of the driveway to the parking lot.

Anthony had lost sight of the appellants and the decedent, and, when he arrived at the parking lot, which was twenty seconds after he left decedent, he observed Jesus letting the air out of the tires of the decedent's automobile, apparently to prevent pursuit. Although Anthony recognized Jesus, apparently believing at that point in time that discretion was the better part of valor, he merely inquired if Jesus had seen the appellants. Jesus said he thought he saw appellant David Maldonado running from the bushes about 50 feet off the road. Anthony's search of the area was unrewarding and so he returned to the picnic area to see if he could find the decedent. When he could not find him there, he returned to the parking lot. After about two minutes, he was joined by his sister, Mari, David Lightey, and decedent's sister, Noreen Monahan. Mark Miller and Sophia Hartell had already arrived at the parking lot while Anthony had gone back to the picnic site. Together, they all set out to search for the decedent. Anthony went down to the Canoe Club and found the decedent near the Canoe Club building. He was unconscious and lying on his back. Anthony yelled for the others to join him. While waiting for the police to arrive, they noticed a pool of blood coming from the bottom of the decedent's back. He had been stabbed twice in the back.

Elvin, who had fallen asleep in the car, testified that he was awakened by Jesus and was told by him that fighting was taking place. He then saw Jesus let the air out of the decedent's automobile tires. As several white youths approached them, Elvin said they drove away. As they were leaving the area, they saw appellants on the road and picked them up. While seated in the car, Elvin heard appellant David Maldonado say, "I think I killed him" and he, appellant David Maldonado, started to cry. He observed appellant, Samuel Maldonado, throw a knife out of the car window as they drove to see Lucy Lisojo.

Lucy Lisojo, the sister of Jesus, 11 testified that at about 10:00 p.m. that evening, appellants, David and Samuel Maldonado, Elvin and Jesus, arrived at her sister's home in Philadelphia. Appellants told her what had happened. Appellant ...

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