684 A.2d 1025 (Pa. 1996), Commonwealth v. Rios

Citation:684 A.2d 1025, 546 Pa. 271
Opinion Judge:The opinion of the court was delivered by: Newman
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Miguel RIOS, Appellant.
Attorney:For M. Rios, Appellant: Earl G. Kauffman, Esquire.
Case Date:October 30, 1996
Court:Supreme Court of Pennsylvania
 
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Page 1025

684 A.2d 1025 (Pa. 1996)

546 Pa. 271

COMMONWEALTH of Pennsylvania, Appellee,

v.

Miguel RIOS, Appellant.

Supreme Court of Pennsylvania.

October 30, 1996

Argued May 1, 1996.

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[546 Pa. 277] Earl G. Kauffman, Philadelphia, for M. Rios.

Catherine Marshall, Alan Sacks, Philadelphia, for Commonwealth.

Robert A. Graci, Harrisburg, for Office of Attorney General.

Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

NEWMAN, Justice.

On June 17, 1993, following a seven day trial in the Court of Common Pleas of Philadelphia County (trial court), a jury found Miguel Rios (Appellant) guilty of first degree murder 1 for the shooting death of Jose Ortiz. The jury also convicted Appellant of three counts each of robbery 2 and unlawful restraint, 3 two counts of aggravated assault, 4 and one count [546 Pa. 278] each of burglary, 5 criminal conspiracy 6 and possession of an instrument of crime 7 . The jury found three aggravating circumstances and one or more mitigating circumstances. 8 Finding that the aggravating circumstances outweighed the mitigating circumstances, the jury set the penalty at death.

New counsel was appointed to pursue Appellant's post-verdict remedies. After a hearing, the trial court denied Appellant's post-verdict motions and imposed the jury's sentence of death. The trial court also imposed consecutive prison sentences of ten to twenty years for each count of robbery, ten to twenty years for burglary, five to ten years for criminal conspiracy, two and one-half to five years for each count of unlawful restraint and two and one-half to five years for possession of an instrument of crime. 9

This case is now before us on direct appeal pursuant to 42 Pa.C.S. § 9711(h)(1). For the reasons discussed below, we affirm the judgment of sentence imposed by the trial court.

  1. SUFFICIENCY OF THE EVIDENCE

    Appellant challenges the sufficiency of the evidence supporting his convictions for first degree murder and criminal conspiracy. Even without these specific challenges, we are required to conduct an independent review of the sufficiency of the evidence in cases where the death penalty has been imposed. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, [546 Pa. 279] 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). When reviewing a sufficiency of the evidence claim, an appellate court must view all of the evidence, and the reasonable inferences to be drawn from that evidence, in the light most favorable to the Commonwealth as verdict winner and must determine if the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt. Commonwealth v. Burgos, 530 Pa. 473, 476, 610 A.2d 11, 13 (1992).

    Pursuant to this standard, the evidence at trial established that on August 27, 1992, Irma Colon (Irma) was sleeping on a couch in the living room of a row home at 330 West Wellens Street in Philadelphia. Irma's sister, Carmen Colon (Carmen), the father of Carmen's child, Jose Ortiz (Jose) and Carmen's

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    two-year-old son, Jose Ortiz, Jr. (Carmen's son) were in a locked bedroom on the second floor. At approximately 9:00 a.m., Appellant, wearing a Philadelphia Gas Works uniform, rang the doorbell. Irma awoke and went to the window, where she saw Appellant standing outside the house. She opened the front door, exited the house and opened a security gate that surrounded the house. Appellant identified himself as a meter man and Irma admitted him to the house and locked the security gate behind her.

    Once inside the house, Appellant grabbed Irma by the neck, pulled out a "walkie-talkie" and announced that "everything is under control." Appellant then forced Irma onto the couch, pulled her hair and threatened to kill her if she did not give him the keys to the security gate. Irma relinquished the keys. Appellant pointed a silver-colored handgun at Irma, took her to the front door and tossed the keys to a second man who was waiting outside the gate. As the second man entered the house, Irma noticed a third man walking toward the house. At that point, Appellant twisted Irma's arm behind her back and demanded to know who else was in the house. Initially, Irma said she was alone. When Appellant again threatened to kill her, Irma told him that Jose, Carmen and Carmen's son were upstairs.

    [546 Pa. 280] Appellant forced Irma to accompany him to the second floor bedroom door where he announced "police" in an attempt to get the occupants to open the door. When Carmen requested time to get dressed, Appellant threatened to kill Irma if the door was not opened immediately. Realizing that Appellant was not a police officer, Jose attempted to retrieve his nine-millimeter Glock handgun from a bedroom closet. However, the closet door became stuck. Fearing for Irma's life, Jose opened the bedroom door.

    Appellant, Irma and a second man entered the bedroom and Appellant ordered Irma to lie face-down on the floor. Appellant, who was carrying the silver-colored handgun, forced Jose to kneel in front of the bed while Carmen lay on the bed with her son. Appellant then demanded money, gold and drugs and threatened to kill Jose if he did not produce these items. Jose denied having any money but told Appellant that there was gold and a handgun in the bedroom closet. Appellant directed the other men to bind Jose's hands and feet and he ordered Carmen to stop looking at him. Although Carmen covered her face with her hands, she looked between her fingers several times and observed Appellant and two other men in the bedroom. After Jose's hands and feet were bound, Carmen noticed that one of the other men had Jose's nine-millimeter Glock handgun stuck in his pants.

    Appellant and the other men then began searching the house. When the search failed to yield anything of significant value, Appellant and the other men returned to the bedroom and beat Jose and Irma. During the beatings, one of the men removed jewelry from Irma's body. Irma lost consciousness a few moments later. Carmen, who was lying on the bed holding her son with her eyes closed, felt the presence of one of the men standing over her and then heard a gunshot. After the gunshot, Carmen remained on the bed with her eyes closed until she felt someone crawl onto the bed next to her a short time later. She opened her eyes to find Irma on the bed, Jose lying motionless on the floor and Appellant and the other men absent from the room. Carmen and her son climbed out of the bedroom window. As Irma prepared to [546 Pa. 281] follow them, she heard one of the intruders returning to the second floor. Irma managed to crawl out of the window before he reached the bedroom and she followed Carmen and her son to a neighbor's house.

    Early that same morning, Hamlett Garcia, a worker at a nearby tire store, observed a Hispanic male wearing a blue uniform walk by with another man. A short time later, he saw an old station wagon, carrying at least two men, speed away from the area. When the police arrived at the scene, Appellant and the two other men were gone. An autopsy revealed that Jose died of a single bullet fired into his head. The autopsy also disclosed that Jose had been beaten on the head, shoulders and feet.

    Carmen and Irma each separately identified Appellant from a photographic array shown to them by police. The police obtained

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    an arrest warrant for Appellant on October 2, 1992. On October 4, 1992, the police found Appellant hiding in the closet of a home in Lancaster and arrested him. The police were unable to recover the murder weapon, but they did recover a "walkie-talkie" from the home where they found Appellant.

    1. First Degree Murder

    To sustain a conviction for first degree murder, the Commonwealth must prove that a defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing, and that the killing was deliberate. 18 Pa.C.S. § 2502(a), (d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). Specific intent to kill can be inferred by the use of a deadly weapon upon a vital part of the body. Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972).

    Appellant contends that the Commonwealth's evidence was insufficient to prove that he killed the victim because neither eyewitness actually saw him fire the fatal shot. Irma was unconscious and Carmen had her eyes closed when the gun was fired. Thus, Appellant claims the Commonwealth failed [546 Pa. 282] to present sufficient evidence to prove that he shot Jose. We disagree.

    We have found evidence sufficient to sustain a conviction for first degree murder where the witness did not see the defendant shoot the victim. Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119 (1993), cert. denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995); see also Commonwealth v. Thompson, 538 Pa. 297, 648 A.2d 315 (1994); Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Commonwealth v. White, 442 Pa. 461, 275 A.2d 75 (1971). In Moore, the defendant and his accomplice, both brandishing guns, forced the victim and three witnesses to the floor of a veterinarian's office. The accomplice handed his gun to the defendant and was tying up one of the witnesses when the victim was shot in the back. Although neither the accomplice nor any of the witnesses saw the defendant shoot the victim, we found that a jury reasonably could have inferred that the defendant shot the victim. Moore, 534 Pa. at 537, 633 A.2d at 1124.

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