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decided: March 21, 1986.


Direct appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of Jan. Term, 1983, Nos. 2143 and 2145.


Michael J. Stack, Jr., Philadelphia, for appellant.

Robert B. Lawler, Chief/Appeals Div., Gaele M. Barthold, Chief/Prosecution Appeals, Susan Vaughan Kahn, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Flaherty

[ 510 Pa. Page 46]


Jurisdiction of the instant appeal is vested in this Court by virtue of The Act of July 9, 1976, P.L. 586, No. 142, as amended, 42 Pa.C.S.A. § 722(4) which provides for automatic review of death sentences. Appellant waived trial by jury at both the guilt stage and the sentencing stage, electing instead to be tried by the Hon. Juanita Kidd Stout, a judge of the Court of Common Pleas of Philadelphia.

The Commonwealth's theory of this case is that it involves a killing for vengeance. The factual history is complicated. At approximately 1:00 a.m. on May 5, 1981, Pablo Ortiz, the victim in this case, was visited at his home by Carlos Tirado and Miquel Pirela, the brother of appellant. The three young men left the home of Ortiz and "shot" heroin. When Pirela became ill, Ortiz and Tirado delivered Pirela to his home. Pirela's wife testified that when she awoke on the morning of May 5, her husband was dead. Although all three men had used heroin from the same source and the same appliances, only Miquel Pirela

[ 510 Pa. Page 47]

    died. The cause of Pirela's death was determined to be a drug overdose, achieved through non-homicidal means.

Later on the day of May 5, Simon Pirela, the appellant, visited Ortiz's home and announced his intention to kill Pablo. Appellant said that Pablo had killed appellant's brother and either Pablo or Carlos Tirado "had to go."

Gilberto Giraud Romero, who was also charged in connection with the murder of Pablo Ortiz, testified for the Commonwealth against appellant and his two co-defendants. Romero testified that on May 6, the day after Miquel Pirela's death, at about 1:00 p.m., he went to his sister's home. There both appellant and his brother, Heriberto Pirela, announced their intentions to kill Pablo Ortiz. Approximately 20 minutes later Ortiz joined the men. Both Pirela brothers inflicted a brutal beating upon Ortiz who was struck by fists and by a tire which was mounted on a rim. Ortiz was then pushed into the basement of the house where the beating continued. Eventually, Heriberto Pirela instructed Carlos Tirado to inject Ortiz with battery acid, or face death himself. While appellant and Pedro Torres held Ortiz's hands, the injection was accomplished. Ortiz became unconscious.

Ortiz's unconscious body was loaded into an automobile belonging to Heriberto Pirela, and Romero was instructed to drive. Appellant warned Carlos Tirado that if Pablo Ortiz did not die, appellant would kill Tirado. While Romero drove the automobile, Tirado strangled Ortiz with a pair of socks. Romero was warned by appellant that if he "ratted" on appellant, appellant would kill him. The families of Romero and Tirado were also threatened. Much of Romero's testimony was corroborated by Carlos Tirado who testified on his own behalf.

Appellant admitted hitting Pablo Ortiz in the course of questioning Ortiz as to the cause of Miquel Pirela's death. However, appellant testified that the murder of Pablo Ortiz was the handiwork of Carlos Tirado, and that appellant neither participated in nor directed the homicide. The fact finder specifically found appellant's testimony incredible.

[ 510 Pa. Page 48]

Ortiz's dead body was deposited on a bridle path in Fairmount Park where it was discovered by a jogger. The immediate cause of Ortiz's death was determined to be strangulation. The beating was deemed to be a contributory cause in that it may have left Ortiz defenseless when the ligature was applied.

Appellant argues the evidence was insufficient to raise the degree of guilt higher than murder of the second degree. He further argues that the evidence proves no more serious offense than voluntary manslaughter, a killing perpetrated "under a sudden and intense passion resulting from serious provocation by: (1) the individual killed . . . ." Act of Dec. 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. § 2503. For the reasons that follow, we find these arguments unpersuasive.

Preliminarily, we note that both of these suggested verdicts conflict with the defense presented at trial which was that appellant had no part in the killing of Pablo Ortiz. The theory advanced by appellant was that the homicide was conceived by either Tirado or Romero and executed by Carlos Tirado to advance some personal interest of either Tirado's or Romero's. Furthermore, appellant continues to argue on this appeal that he did not commit the fatal assault, did not attempt to kill and did not intend to kill Pablo Ortiz. These arguments are grounded on the fact that appellant was not present when the strangulation occurred. Notwithstanding this apparent conflict in defense strategies, however, we will address the propriety of such verdicts on the evidence presented below.

In his argument that the degree of guilt in this case can rise no higher than voluntary manslaughter, appellant likens the instant matter to the case of Commonwealth v. Berry, 461 Pa. 233, 336 A.2d 262 (1975). In Berry, we recognized that a reasonable man might become so impassioned that he would kill where he arrives upon the scene within seconds of an attack upon his mother, finds her prostrate on the ground, and hears from her the account of her attack. We stated: "The threatened or immediate

[ 510 Pa. Page 49]

    infliction of serious injury upon a parent, spouse or child because of the relationship of the parties and the expected concern of one for the well being of the other, has occasioned courts to hold this conduct may be sufficient provocation to reduce the killing to voluntary manslaughter." Id., 461 Pa. at 238, 336 A.2d at 264. Certainly, immediate infliction of serious injury upon a sibling is conduct that might provoke in a reasonable man such sudden passion that would reduce the degree of guilt to voluntary manslaughter. However, the instant case does not present the kind of immediacy of harm and resultant sudden passion relative to the time of the homicide provoked thereby as could reduce the degree of guilt to voluntary manslaughter.

Pablo Ortiz, Carlos Tirado and Miquel Pirela shot heroin sometime after 1:30 a.m. on May 5. Miquel Pirela was taken home in the early morning hours on the same day. When his wife awoke around 9 a.m., she found Miquel Pirela had died. The attack upon Pablo Ortiz, unquestionably the result of the death of Miquel Pirela, occurred after noon on May 6 -- more than 24 hours after Miquel Pirela's death. Thus, the death of Miquel was not immediate with respect to appellant's attack upon Pablo Ortiz. Nor, in view of the lapse of time between the two events, could appellant have attacked Pablo Ortiz out of a sudden passion resulting from Miquel's death.

Appellant argues that the homicide of Pablo Ortiz resulted from a "sudden transport of passion, excited by the deceased [sic] continual refusal to give [appellant] any information concerning his brother's death." To constitute voluntary manslaughter, the killing must result from "serious provocation." 18 Pa.C.S.A. § 2503(a). As the evidence suggests the death of Miquel Pirela was caused by a self-induced overdose of drugs and alcohol,*fn1 the failure of

[ 510 Pa. Page 50]

Pablo Ortiz to account for Miquel Pirela's demise cannot constitute legal provocation sufficient to excuse appellant's violent behavior. Moreover, in view of testimony of numerous witnesses that appellant was threatening to kill Pablo Ortiz more than 24 hours before the fatal assault began, we cannot accept appellant's latest excuse for that assault.

[ 510 Pa. Page 51]

Appellant's passion was a response to his brother's unexpected demise. The intensity of the passion which appellant claims impelled him to slay Pablo Ortiz should have subsided in the more than 24 hours which elapsed between the death of Miquel Pirela and the attack upon Pablo Ortiz. "[Voluntary manslaughter] is a concession to the infirmity of human nature, not an excuse for undue or abnormal irascibility . . . ." Commonwealth v. ...

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