Com. v. DeJesus

• Decision Date: 31 December 2001
• Citation: 787 A.2d 394,567 Pa. 415
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jose DeJESUS, Appellant.
• Court: Pennsylvania Supreme Court

787 A.2d 394

567 Pa. 415

COMMONWEALTH of Pennsylvania, Appellee, v. Jose DeJESUS, Appellant.

Supreme Court of Pennsylvania.

Submitted March 13, 2001.

Decided December 31, 2001.

Joseph Marinaro, Philadelphia, for J. DeJesus.

Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Commonwealth of PA.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

This is a direct review of a sentence of death imposed by the Court of Common Pleas of Philadelphia County.¹ For the reasons that follow, we affirm the judgment of sentence.

The Appellant, Jose DeJesus, was arrested and taken into custody on September 23, 1997 for other crimes. On October 30, 1997, Appellant was arrested and gave a statement to the police in this case. Appellant was charged with two counts of murder,² two counts of aggravated assault,³ possession of an instrument of crime,⁴ criminal conspiracy,⁵ and reckless endangerment of another person.⁶ Appellant's trial began on July 26, 1999. On August 5, 1999, the jury found him guilty of two counts of first degree murder, and all related offenses. Following the penalty phase, the jury also returned a verdict of the death penalty on each count of murder, finding four aggravating circumstances⁷ and no mitigating circumstances. On August 17, 1999, the Court of Common Pleas of Philadelphia County formally sentenced Appellant to death, and additionally sentenced him to serve twenty to forty years for aggravated assault, two and one-half to five years for possessing an instrument of crime, and ten to twenty years for conspiracy, all to run consecutively.⁸ Appellant's post-trial motions were denied. This appeal followed.

Although Appellant does not challenge the sufficiency of the evidence with regard to his first degree murder convictions, we are required to undertake an independent review of the sufficiency of the evidence in all capital cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1314 (1995).

In order to sustain a finding of first degree murder, the evidence must establish that a human being was unlawfully killed, that the accused did the killing, and that the killing was done in an intentional, deliberate and premeditated way. 18 Pa. C.S. § 2502(a), (d); Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (1991). It is the specific intent to kill which distinguishes murder in the first degree from lesser grades of the crime. Commonwealth v. Smith, 548 Pa. 65, 694 A.2d 1086, 1088 (1997), cert. denied, 525 U.S. 847, 119 S.Ct. 118, 142 L.Ed.2d 95 (1998). The prosecution may prove the elements of the offense, including the requisite intent, through circumstantial evidence. Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 449 (1998). We have held that the use of a deadly weapon on a vital part of a human body is sufficient to establish the specific intent to kill. Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90, 95(Pa.), cert. denied, 516 U.S. 854, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995). Moreover, under the doctrine of transferred intent, the intent to murder may be transferred where the person actually killed was not the intended victim. 18 Pa.C.S. § 303(b)(1); Commonwealth v. Gaynor, 538 Pa. 258, 648 A.2d 295, 298 (1994); Commonwealth v. Gibbs, 533 Pa. 539, 626 A.2d 133, 138 (1993).

The evidence that gave rise to Appellant's convictions for first degree murder was as follows. In May of 1997, Elias Pagan was a drug dealer who controlled drug sales at the corner of 8th and Birch Streets in Philadelphia. Pagan lived on Rorer Street with Aileen "Hazel" Centano, his common-law wife. Carlos "Guatauba" Robelos, Arisbel "Millo" Ortiz, Jonathan "Bolle" Hernandez, George Roman, and Angel Pabon sold drugs for Pagan.

Felix "Chino" Vargas was a rival drug dealer who controlled the corner of Franklin and Cambria Streets. Vargas had recently shot Robelos. Robelos had vowed to kill Vargas. Pagan told Robelos that he would pay him for killing Vargas. Robelos offered to pay Appellant if he helped kill Vargas.

On May 30, 1997, Roman, Ortiz, Hernandez, and Pabon were selling drugs on the corner of 8th and Birch. Pagan went to the corner and told Ortiz to contact him if he saw Vargas. In the late afternoon, Roman, Hernandez, Pabon, Robelos and Appellant were gathered at Pagan's house. They sat at the kitchen table and talked about killing Vargas. Ortiz telephoned at about 7:00 p.m. to tell them that he had seen Vargas. Pagan responded that it was too early to take action. At around 10:30 p.m., Ortiz telephoned to tell Pagan that he had seen Vargas again. Pagan told Ortiz to come to his house in his car.

Some fifteen minutes later, Ortiz arrived at Pagan's house, driving his small gray Toyota 1.8, with tinted windows and a tilted license plate. Ortiz came inside and Pagan went to the basement. When Pagan came out of the basement, he had with him a large black bag. The bag contained two AK 47 rifles, a .9 millimeter semiautomatic pistol, a .45 caliber semi-automatic pistol, and ski masks. Pagan gave one of the rifles to Robelos and the other to Appellant and the handguns to Pabon and Hernandez, and said "do it right."

At 10:50 p.m. Ortiz, Robelos, Pabon, Hernandez and Appellant left Pagan's house in the Toyota to find Vargas and shoot him. Ortiz was driving, Robelos was sitting in the front seat, and Appellant, Pabon and Hernandez were sitting in the back. Roman left to go to his father's house.

Vargas was a few blocks away at the corner of Franklin and Indiana Streets, sitting in his parked automobile with a friend, Tony Garcia. As an ice cream truck arrived and stopped nearby, Garcia exited the car, and Elizabeth Carrisquilla, who was seven months pregnant, leaned on the passenger window to speak with Vargas. When the Toyota arrived at Franklin and Indiana, Appellant, Robelos, Hernandez and Pabon got out of the car and started shooting at Vargas, who was approximately fifteen feet away.

Oscar Velez was sitting on Franklin Street with friends. He saw a gray, two-door, Toyota 1.8 with tinted windows and a tilted license plate drive by and park in the intersection of Franklin and Indiana. He next saw men wearing black clothes and ski masks get out of the Toyota and start shooting at Vargas' car.

Paula McBride, along with her baby, was on Franklin with Lisa Velez and Martiza Martinez. McBride and Martinez heard noises that sounded like firecrackers and saw bright lights coming from the corner. As Martinez ran to McBride's house, she felt a burning on the back of her right leg. As McBride leaned over to pick up her baby, she felt a stinging on the top of her head. Both Martinez and McBride had been shot. Lisa Velez, who was near the ice cream truck, heard a noise that sounded like a firecracker and ducked. She peeked around the front of the truck and saw the gray, two door Toyota 1.8 parked in the middle of the intersection, as well as smoke and sparks coming from Vargas' car. She also saw shooters wearing black clothes and face masks. She next observed one of the men with a rifle enter the Toyota as the car pulled away. When the shooting stopped, Garcia ran to Vargas' car. Vargas was slumped over the steering wheel. Carrisquilla was on the ground, shot in the back. The authorities and medical help were summoned. Vargas was pronounced dead at the scene from multiple gunshot wounds to the head, neck and chest. McBride, Martinez and Carrisquilla were taken to the hospital. McBride and Martinez were treated and survived. Carrisquilla died. Her baby, delivered by Cesarean section, was saved. Projectiles removed by the medical examiner from both Vargas and Carrisquilla were from AK-type firearms.

In the meantime, Ortiz, who had suffered a graze wound to the head, drove to Hernandez's mother's home at 811 Birch Street, along with Hernandez and Robelos. Pagan came out of 811 Birch to take Ortiz to the hospital. Pagan was heard to say "D* *n, those n* * * * *s just killed Chino." Neighbors saw Pagan, Centano, Hernadez, Pabon, Ortiz, and Robelos celebrating on the street.

At about 11:30 p.m., Roman met with Pagan, Centano, Hernandez, Pabon, Robelos and Appellant in Pagan's home. Pagan told Centano to get the money. Centano retrieved two bundles of cash, each containing $2,500, and gave them to Robelos. Robelos kept one bundle and gave the other to Appellant.⁹

Our thorough review of the record demonstrates that the above-recited evidence is clearly sufficient to support the Appellant's convictions for first degree murder. The evidence establishes that Appellant was present in Pagan's home during the planning of Vargas' shooting, that Pagan gave him a AK 47 rifle and ski mask the night of the murder, that he was one of the men in the Toyota from which Vargas' killers emerged, that he shot at vital parts of Vargas' body with a AK-47 rifle, that fragments recovered from both Vargas and Carrisquilla were consistent with an AK-47 type of rifle, and that he received payment for Vargas' death.

We now turn to Appellant's allegations of error. The first concerns Appellant's assertion that the admission at trial of a statement he gave the police in which he confessed to shooting Vargas for payment violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We begin with the facts relevant to Appellant's confession. The record reveals that Appellant had been arrested, taken into custody, and charged with other crimes on September 23, 1997. In connection with this arrest on ...