Commonwealth v. Rivera, No. 2101 EDA 2019

• Decision Date: 25 August 2020
• Docket Number: No. 2101 EDA 2019
• Citation: 238 A.3d 482
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Waldemar RIVERA, Appellant
• Court: Pennsylvania Superior Court

238 A.3d 482

COMMONWEALTH of Pennsylvania, Appellee

v.Waldemar RIVERA, Appellant

No. 2101 EDA 2019

Superior Court of Pennsylvania.

Filed: August 25, 2020

Submitted May 20, 2020

Glennis L. Clark, Allentown, for appellant.

James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Heather F. Gallagher, Assistant District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

Waldemar Rivera (Appellant) appeals from the March 1, 2019 judgment of sentence¹ imposed after a jury found him guilty of second-degree murder,² robbery, burglary, and three counts of conspiracy (second-degree murder; robbery; burglary). Upon review, we vacate Appellant's convictions and sentences for conspiracy to commit second-degree murder and conspiracy to commit burglary, and affirm his judgment of sentence in all other respects.

We begin with the following factual summary provided by the trial court.

Lehigh County Homicide Task Force was dispatched to a body discovered [ ] on August 13, 2017, in the city of Allentown[.] Police arrived and found [Jermaine Jerome Taylor (Victim) ], deceased in his bedroom on the third floor of his residence. Numerous shell casings were found scattered on the floor but no firearms were located on scene. Police learned that [Victim's] 10-year-old daughter was present at the time of the shooting and [was] hiding in the room. The investigation revealed that [Victim] was shot and killed during a home invasion robbery by a group of four individuals including [Appellant].

While canvassing the crime scene, the police noticed blood droplets dispersed throughout the residence. Blood droplets were discovered throughout the bedroom, down the stairs, and outside the residence. Police followed the blood trail through the city streets and discovered a suspect, later revealed to be coconspirator Isaac Navarro, with his hand bandaged. Navarro was interviewed and the information eventually led the police to the arrest of the other conspirators.

The co-conspirators all testified at trial about their role in the conspiracy that led to the death of [Victim]. The conspirators believed that [Victim] was involved in dealing drugs and had money and drugs in his home. A scheme was formed by [Appellant] and his friends to rob [Victim] through threat of force and the group armed themselves with a gun. [Appellant] and his co-conspirators proceeded to sneak through alleyways on foot, and under cover of darkness broke into [Victim's] residence.

Upon entering the residence, the group assaulted [Victim] and threatened him with a gun. The assailants dragged [Victim] upstairs and demanded that he open his safe. [Victim] opened his safe, but grabbed his .40 caliber handgun, and fired a single shot which struck co-conspirators Brandon Eanes and Sasha Vargas. [ ] Navarro also injured his hand from striking [Victim] repeatedly. The testimony at trial revealed that [Victim] was then shot multiple times in the presence of his minor daughter and left for dead. [Victim's] cause of death was multiple gunshot wounds

. The testimony placed the gang of thieves’ gun in the possession of [Appellant]. The group fled on foot with [Victim's] gun, a samurai sword, cash, and some marijuana.

Surveillance photos and video were recovered from nearby alleyways confirming the presence of all conspirators. [Victim's] handgun was turned in to the police by [Appellant's] mother a few months after the robbery. The .380 caliber firearm used to murder [Victim] was never recovered.

[Appellant] was arrested and interviewed on August 16, 2017, after being provided with his Miranda^[3

^] warnings. [Appellant] admitted to breaking and entering the residence and participating in the robbery of [Victim]. However, [Appellant] claimed [ ] Eanes had the gun and alleged that he got nothing from the robbery. [Appellant] asserts that he did not shoot [Victim].

Trial Court Opinion, 6/21/2019, at 3-4 (footnotes omitted).

Based on the foregoing, Appellant was charged with one count each of criminal homicide, robbery, and burglary, and three counts of conspiracy (criminal homicide; robbery; burglary). Appellant proceeded to a jury trial from February 26, 2019 to March 1, 2019. The jury heard testimony from, inter alia , Navarro, Eanes, and Vargas. During trial, Appellant attempted unsuccessfully to locate Victim's daughter in order to call her as a defense witness. Therefore, Appellant sought to introduce her videotaped interview with police, which occurred a few hours after Victim's death, based on her being an unavailable witness and the interview qualifying under either the excited-utterance or present-sense-impression exceptions to the rule against hearsay. See N.T., 2/28/2019, at 100-04. The trial court denied Appellant's request, concluding that Victim's daughter was not unavailable for purposes of the hearsay rule, and regardless, the interview did not fall within either exception. Id. at 107-08.

On March 1, 2019, the jury found Appellant guilty as indicated above.⁴ Appellant was sentenced that same day to the following terms of incarceration: life imprisonment without parole for second-degree murder; 10 to 20 years for robbery; 10 to 20 years for burglary; 20 to 40 years for conspiracy to commit criminal homicide;⁵ 10 to 20 years for conspiracy to commit robbery; and 10 to 20 years for conspiracy to commit burglary. All sentences were set to run concurrently, except for the 10-to-20-year term of incarceration for conspiracy to commit robbery, which was ordered to run consecutively to the other five charges.

On March 6, 2019, Appellant filed a post-sentence motion, alleging that the felony-murder rule⁶ is unconstitutional, the evidence was insufficient and the verdict was against the weight of the evidence, the consecutive sentence was "excessive and unreasonable[,]" and the trial court erred in excluding the videotaped interview of Victim's daughter as hearsay not subject to an exception. Post-Sentence Motion, 3/6/2019, at 2. The trial court ordered Appellant and the Commonwealth to file briefs in response to Appellant's post-sentence motion. Order, 3/20/2019. The parties complied. On June 21, 2019, the trial court denied Appellant's post-sentence motion by order and opinion.

This timely filed notice of appeal followed.⁷ On appeal, Appellant raises the following issues.

[1] Whether the trial court erred in denying [Appellant's] motion regarding an eyewitness being unavailable?

[2] Whether the evidence presented at trial was insufficient to support the verdict and whether the verdict was against the weight of the evidence?

[3] Whether the trial court erred in imposing a consecutive sentence for robbery?

[4] Whether the felony[-]murder conviction should be overturned?

Appellant's Brief at 9 (suggested answers and unnecessary capitalization omitted; reordered for ease of disposition).

Admission of Videotaped Statement

We begin with Appellant's argument that the trial court erred in precluding the admission of the videotaped police interview of Victim's daughter. Appellant's Brief at 27.⁸ Specifically, Appellant avers that she was unavailable for purposes of the rule against hearsay, and her statements during the interview were admissible under either the excited-utterance or present-sense-impression exceptions. Appellant's Brief at 29-30.

We begin with our standard of review.

An appellate court's standard of review of a trial court's evidentiary rulings[,] which include rulings on the admission of hearsay[,] is abuse of discretion. However, whether a defendant has been denied his right to confront a witness under the Confrontation Clause of the Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, is a question of law, for which our standard of review is de novo and our scope of review is plenary.

In re N.C. , 629 Pa. 475, 105 A.3d 1199, 1210 (2014) (citations omitted).

"Hearsay is an out-of-court statement offered for the truth of the matter asserted. Hearsay generally is inadmissible unless it falls within one of the exceptions to the hearsay rule delineated in the Pennsylvania Rules of Evidence." Commonwealth v. Sandusky , 203 A.3d 1033, 1054 (Pa. Super. 2019) (citation and quotation marks omitted). At trial, Appellant argued Victim's daughter was unavailable and sought to introduce the statement under the present sense impression or excited utterance exception.

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter, except as provided in Rule 803.1(4);

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

Pa.R.E. 804(a). If a witness is unavailable pursuant to subsection (a), the following types of statements will not be subject to exclusion by the rule against hearsay.

(1) Former Testimony...

(2) Statement Under Belief of Imminent Death...

(3) Statement Against Interest...

(4) Statement of Personal or Family History...

(5) Other exceptions (Not Adopted) ...

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability...

Pa.R.E. 804(b).

At the outset, even if we were to conclude that the trial court should have found Victim's daughter was unavailable, Appellant...