Com. v. Cruz-Centeno, CRUZ-CENTEN

• Decision Date: 04 December 1995
• Docket Number: CRUZ-CENTEN,A
• Citation: 447 Pa.Super. 98,668 A.2d 536
• Parties: COMMONWEALTH of Pennsylvania v. Efrainppellant.
• Court: Pennsylvania Superior Court

Page 536

668 A.2d 536

447 Pa.Super. 98

COMMONWEALTH of Pennsylvania v. Efrain CRUZ-CENTENO, Appellant.

Superior Court of Pennsylvania.

Submitted June 22, 1995.

Filed Dec. 4, 1995.

Peter C. Bowers, Philadelphia, for appellant.

Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.

WIEAND, Judge:

Efrain Cruz-Centeno was tried non-jury and was found guilty of third degree murder and possession of an instrument of crime. Post-trial and supplemental post-trial motions were denied, and Cruz-Centeno was sentenced to serve a term of imprisonment for not less than eight (8) years nor more than sixteen (16) years for third degree murder and a concurrent term of imprisonment for not less than six (6) months nor more than one (1) year for possessing an instrument of crime. On direct appeal from the judgment of sentence, Cruz-Centeno argues that: (1) the evidence at his trial was legally insufficient to sustain his conviction for third degree murder; (2) the verdict was contrary to the weight of the evidence; (3) the trial court erred by allowing into evidence the preliminary hearing testimony of a Commonwealth witness who did not testify at trial; and (4) his sentence for third degree murder was excessive and unreasonable. After careful review, we affirm the judgment and sentence.

On June 28, 1993, shortly after midnight, appellant was sitting on the steps at the corner of Palethorpe and Estaugh Streets in Philadelphia. Sitting with appellant was Claudio Ayala, an older man, who was very intoxicated at the time. Appellant, according to the Commonwealth's evidence, was playing with a loaded revolver, pointing it in the air and spinning the barrel. The victim, Ronald Johnson, and Luis Perez were walking along Palethorpe Street, and, as they were passing appellant and Ayala, Johnson stopped and asked appellant, "What's up?" Appellant replied, "Nothing much," and, then, proceeded to point the gun at Johnson and shot him in the left chest from a distance of approximately one foot. The bullet passed through both of the victim's lungs and his heart, causing his death. After the shooting, Perez observed appellant laughing. Appellant then walked to his home, and, a short time later, he returned to the scene of the shooting and was heard to say that the shooting had been accidental.

When police arrived on the scene, appellant was identified by Perez as the shooter and arrested by police. Police also took Claudio Ayala into custody, but he was too intoxicated to be interrogated. The following morning, Ayala said he remembered nothing about the shooting. Perez testified against appellant at the preliminary hearing in this case, but, the Commonwealth was unable to locate him at the time of trial. After a finding was made that Perez was an unavailable witness, the trial court allowed the Commonwealth to introduce his preliminary hearing testimony into evidence at trial.

Both appellant and his wife, Luz Galeano, testified at trial that the gun discharged while appellant was struggling with Claudio Ayala. According to appellant, he had been sitting on his steps, when Ayala approached him and showed him a gun. Ayala said that the gun was not loaded and pointed it at appellant's face. Appellant grabbed the gun from Ayala and pointed it up in the air. At this point, appellant said, Ayala grabbed his hand and attempted to regain possession of the gun. Then, appellant testified, the gun discharged and the victim was shot. When appellant placed the gun on the ground, Ayala took it and ran from the scene. Despite police searches of both appellant's and Ayala's homes, the gun was never found. Appellant further testified that the victim had been his friend and that he had never intended to kill him.

With respect to appellant's challenge to the sufficiency of the evidence, our standard of review is as follows:

In evaluating a challenge to the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). "[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). In addition, the facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the [factfinder] unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

Commonwealth v. Nicotra, 425 Pa.Super. 600, 603-604, 625 A.2d 1259, 1261 (1993).

Appellant asserts that the evidence at trial was more consistent with the defense theory that the gun accidentally discharged during a struggle than with the Commonwealth's theory of the case that he had intentionally pointed the gun at the victim. Therefore, appellant contends, the Commonwealth failed to prove beyond a reasonable doubt that he acted with the requisite malice to sustain a conviction of third degree murder.

"The elements of third-degree murder, as developed by case law, are a killing done with legal malice but without the specific intent to kill required in first-degree murder." Commonwealth v. Hill, 427 Pa.Super. 440, 444, 629 A.2d 949, 951 (1993). "Malice is the essential element of third degree murder[,]" Commonwealth v. Mercado, 437 Pa.Super. 228, 245, 649 A.2d 946, 955 (1994), "and is the distinguishing factor between murder and manslaughter." Commonwealth v. Smouse, 406 Pa.Super. 369, 379, 594 A.2d 666, 671 (1991). The Pennsylvania Supreme Court has defined malice in the following terms:

'The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill-will, a spite or a grudge. Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.'

Commonwealth v. Thomas, 527 Pa. 511, 514, 594 A.2d 300, 301 (1991), quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868). Accordingly, it has been observed "that malice may be found where the 'actor consciously disregard[s] an unjustified and extremely high risk that his actions might cause death or serious bodily harm.' " Commonwealth v. Seibert, 424 Pa.Super. 242, 250, 622 A.2d 361, 364 (1993), quoting Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981). "Malice may be inferred from 'the attending circumstances of the act resulting in the death.' " Commonwealth v. Lee, 426 Pa.Super. 345, 350, 626 A.2d 1238, 1241 (1993), quoting Commonwealth v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007, 1008 (1980). "Malice is properly implied when a deadly weapon is directed to a vital part of the [victim's] body." Commonwealth v. Palmer, 448 Pa. 282, 288, 292 A.2d 921, 923 (1972). See also: Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Indeed, "the inference from the use of a deadly weapon upon a vital part of the body alone is sufficient to establish malice." Commonwealth v. Torres, 396 Pa.Super. 499, 503, 578 A.2d 1323, 1325 (1990) (emphasis added). See: Commonwealth v. Carbone, 524 Pa. 551, 562-563, 574 A.2d 584, 590 (1990).

When the evidence is viewed most favorably to the Commonwealth, it establishes that appellant, while playing with a loaded gun, pointed it at the victim and pulled the trigger. This was clearly sufficient to support a finding of malice. Moreover, even if appellant had not been fully aware that the gun was loaded, his actions would still have risen to the level of legal malice necessary to support a third degree murder conviction. See: Commonwealth v. Young, supra at 229, 431 A.2d at 230 ("By intentionally aiming a gun at [the victim] without knowing for a certainty that it was not loaded, appellant exhibited that type of cruel and wanton conduct of which legal malice is made."). Here the trial court found incredible the testimony of appellant and his wife that the gun had accidentally discharged while appellant had been struggling with Claudio Ayala. The court's finding in this regard is not undermined by the failure of the Commonwealth to produce evidence explaining the reason for the shooting. "The Commonwealth need not prove motive in order to establish the existence of malice." Commonwealth v. D'Ambro, 500 Pa. 303, 308 n. 5, 456 A.2d 140, 143 n. 5 (1983). See also: Commonwealth v. Manchas, 430 Pa.Super. 63, 73, 633 A.2d 618, 623 (1993). Suffice it to say that the trial court's verdict was supported by evidence legally sufficient to sustain a conviction for third degree murder.

Appellant...