Com. v. Gonzales

• Decision Date: 23 July 1992
• Citation: 415 Pa.Super. 564,609 A.2d 1368
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Antonio GONZALES, Appellant.
• Court: Pennsylvania Superior Court

Page 1368

609 A.2d 1368

415 Pa.Super. 564

COMMONWEALTH of Pennsylvania, Appellee, v. Antonio GONZALES, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 12, 1991.

Filed May 28, 1992.

Reargument Denied July 23, 1992.

John B. Elbert, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before MONTEMURO, HUDOCK and BROSKY, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was convicted, at the conclusion of a non-jury trial, of murder in the third degree. ¹ Timely filed post-verdict motions were denied by the trial court and Appellant was sentenced to the mandatory minimum of life imprisonment as required by 42 Pa.C.S. § 9715 (Purdon 1982) (Life imprisonment for homicide). This appeal followed in which Appellant raises three instances of trial court error. We affirm.

Appellant first claims that the evidence was insufficient to sustain his third degree murder conviction on the basis that the Commonwealth failed to prove malice. Evidence is sufficient to support a conviction so long as the fact-finder reasonably could have determined that every element of the offense was established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). In making this determination, a reviewing court must consider the evidence in the light most favorable to the Commonwealth, as verdict winner, and must draw all reasonable inferences therefrom in favor of the Commonwealth. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). Malice is a necessary element of proof to support a conviction of murder in the third degree. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978); Commonwealth v. Austin, 394 Pa.Super. 146, 575 A.2d 141 (1990). Malice is a legal term that encompasses not only ill will, but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty. Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989). Malice may be inferred from the use of a deadly weapon on a vital part of the victim's body. Id.

At trial, the Commonwealth and Appellant presented divergent testimony regarding the events leading to the killing in question. The two versions of the events which transpired prior to the killing may be summarized as follows:

The Commonwealth's version of the events was given through the testimony of Jose Rosario (Rosario). Rosario testified that he and the victim, Jesus Rodriguez (Rodriguez), were crossing the street when an automobile sped by, nearly hitting Rosario. Rosario exchanged expletives with the occupants of the vehicle, Appellant and Bienviendo Morales (Morales). Thereafter, Appellant and Morales alighted from the automobile, Appellant wielding a screwdriver and Morales carrying a baseball bat. Appellant threatened to stab Rosario and Rodriguez with the screwdriver. Appellant and Morales then exchanged the screwdriver and the bat, whereupon Appellant walked around the back of the automobile and struck Rodriguez on the head with the bat. After striking the blow, Appellant and Morales fled in the automobile.

Appellant's version of the events is markedly different. Appellant testified that Rosario jumped in front of the automobile in which he and Morales were riding and that Rodriguez was knocking on the side passenger window asking Appellant and Morales if they wanted to buy drugs. Appellant and Morales refused the offer and drove to the home of Appellant's girlfriend. Shortly after he left the home of his girlfriend, someone called Appellant to the corner. Appellant testified that Rodriguez came towards him wielding a baseball bat and swung it at Appellant. Appellant stepped back and then grabbed the bat and shoved Rodriguez. Appellant stated that he struck Rodriguez in an act of self-defense because the latter was coming toward him and he (Appellant) was afraid.

The essence of Appellant's argument is that the trial court, sitting as fact-finder, should have believed his version of the events because his version supports his claim of self-defense. Thus, Appellant asserts, the Commonwealth failed to prove legal malice because it did not disprove self-defense beyond a reasonable doubt.

It is true that the Commonwealth must disprove a claim of self-defense beyond a reasonable doubt. Commonwealth v. Hunter, supra. And it is also the case that a successful claim of self-defense negates the element of malice, as the two concepts are mutually exclusive. Commonwealth v. Hinchcliffe, supra; Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978). To negate a claim of self-defense, the Commonwealth is required to prove any one of the following: (1) the defendant's belief that it was necessary to kill the victim in order to protect himself from death or serious bodily harm was unreasonable; (2) the defendant provoked the use of force; or (3) the defendant had a duty to retreat and could safely do so. Commonwealth v. Hunter, supra.

Appellant's sufficiency claim necessarily relies on a finding that his version of the events in question is more credible than the testimony presented by the Commonwealth. As fact-finder, the trial court was free to reject or accept all, part, or none of the testimony of any witness. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975); Commonwealth v. Hunter, supra. Serving in this capacity, the trial court rejected Appellant's version of the events. The trial court's disbelief of Appellant's assertion of self-defense obviates the need for the Commonwealth to disprove the claim. Thus, we need only determine whether the Commonwealth proved malice beyond a reasonable doubt.

Upon review of the record, we are satisfied that the Commonwealth presented sufficient evidence to support the element of malice. The testimony which the trial court credited reveals that Appellant first wielded a screwdriver with which he threatened to stab the victim and Rosario, and then brandished a baseball bat with which he clubbed the victim to death. Moreover, the trial court could properly draw an inference of malice from Appellant's intentional use of the baseball bat upon the victim's head. See Commonwealth v. Hinchcliffe, supra. Appellant's first claim is without merit.

Appellant next claims that the trial court erred in refusing to grant a mistrial when the prosecutor attempted to introduce irrelevant and prejudicial evidence of Appellant's alleged involvement in narcotics distribution. We disagree.

The decision whether to grant a mistrial is within the sound discretion of the trial court and will not be reversed absent a flagrant abuse of that discretion. Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989), alloc. den'd., 524 Pa. 618, 571 A.2d 381. The admission or exclusion of evidence, insofar as its relevance is concerned, is a matter committed to the trial court's discretion. Absent an abuse of discretion or an error of law, the trial court's ruling will not be disturbed on appeal. See, e.g., Commonwealth v. Edward Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990). Moreover, when the court is sitting as fact-finder it is presumed that inadmissible evidence is disregarded and that only relevant and competent evidence is considered. Commonwealth v. Kevin Davis, 491 Pa. 363, 421 A.2d 179 (1980). In a non-jury trial, the court is presumed to have disregarded evidence too prejudicial to be considered by a jury, thus assuming that the court in a bench trial would follow the very instructions which it would otherwise give to a jury. Commonwealth v. Wright, 234 Pa.Super. 83, 87-89, 339 A.2d 103, 106 (1975) (citing Commonwealth v. Mangan, 220 Pa.Super. 54, 281 A.2d 666 (1971)). Cf. Commonwealth v. Kevin Davis, supra (court sitting as fact-finder expressly stated that it had disregarded appellant's prior criminal record in reaching verdict); cf. Commonwealth v. Stantz, 353 Pa.Super. 95, 509 A.2d 351 (1986) (appeal denied) (bias or hostility towards defendant as a result of intemperate prosecutorial remarks made in closing are lessened or even eliminated when trial court sits as fact-finder).

The evidence which Appellant maintains was improperly introduced concerned Appellant's alleged involvement in a narcotics distribution organization known as the OK Corral. Appellant also objects to the prosecutor's reference to a nickname used by Appellant written next to the initials "OKC" which appeared in a photograph depicting the area where the killing occurred. The nickname and initials "OKC" appeared on a wall depicted in the photograph. In addition, Appellant contends that the prosecutor improperly elicited a response from a police officer indicating that an area near the scene of the killing was a narcotics distribution area. This response was elicited shortly after a witness testified that he had seen Appellant in that area.

As to the first alleged impropriety, Appellant called witness Jose Torres who gave a version of the killing similar to the one proffered by Appellant and, thus, favorable to the defense. Upon cross-examination, the prosecutor asked this witness if he had sold drugs in the area of the killing and if he had been a member of an organization called the OK Corral. The witness denied selling drugs in that area but admitted that he sold drugs in another area. However, the witness did not respond to the question asking whether he was a member of the OK Corral because both defense counsel moved for a mistrial, which the court denied.

With regard to the alleged improper reference to the nickname and the initials "OKC" on the wall depicted in the photograph, the prosecutor attempted to demonstrate that Appellant was involved in narcotics distribution in the area of the killing. The Commonwealth introduced this evidence after Appellant testified on cross-examination that he was offended...