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04/24/97 COMMONWEALTH PENNSYLVANIA v. ANGEL SOTO

April 24, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
ANGEL SOTO, APPELLANT; COMMONWEALTH OF PENNSYLVANIA V. ANGEL SOTO, APPELLANT



Appeal from the ORDER ENTERED June 27, 1996, in the Court of Common Pleas of NORTHAMPTON County, CRIMINAL, No. 299-1989. Before HOGAN, J.

Appeal from the JUDGMENT OF SENTENCE August 13, 1996, in the Court of Common Pleas of NORTHAMPTON County, CRIMINAL, No. 299-1989. Before HOGAN, J.

Before: McEWEN, P.j.; Schiller and Olszewski, JJ. Opinion BY Olszewski, J. McEWEN, P.j. and Schiller, J., Concur IN The Result.

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

FILED APR 24 1997

In early November of 1988, Angel Soto a/k/a Chino (Soto) and his cousin Luis Torres (Popo) savagely killed Nepomuceno Pacheco (Nepo). The murder, planned and openly discussed for at least one week prior to the actual execution, resulted from a drug dealing dispute. After the duo lured the victim to a desolate quarry, Popo shot Nepo five times throughout the body area. Apparently unsatisfied that these wounds would prove fatal, but out of ammunition, Soto and Popo quickly fled to an acquaintance's home approximately one mile away to procure more bullets for the murder weapon. This accomplished, the cohorts returned to the scene of the crime, after which Soto shot Nepo three times in the head and then fled the jurisdiction.

Approximately sixteen months later, in March of 1989, Soto was apprehended by the FBI in New Jersey and returned to Northampton County to face charges of criminal homicide and conspiracy. On June 19, 1991, after a five-day jury trial, Soto was found guilty of first-degree murder and criminal conspiracy. On that same day, following the sentencing phase of the trial, the jury recommended a sentence of life imprisonment for the murder conviction. Appellant was sentenced to an additional, consecutive, term of five-to-ten years imprisonment for the conspiracy conviction. *fn1

Post-trial motions were filed by appellant's trial attorneys, Renald S. Baratta and Leonard M. Mellon. On the date scheduled for post-trial argument, trial counsel were permitted to withdraw their appearances and F. Michael Medway, Esquire, entered his appearance as private counsel on appellant's behalf. Supplemental post-trial motions were filed, raising twenty-four instances of alleged trial error. Following an evidentiary hearing confined to those issues challenging trial counsels' representation, appellant's motions were denied. A seventy-two page opinion was issued along with the court order denying the motions.

A timely appeal was then taken to this Court. After reviewing appellant's statement of matters complained of on appeal, filed pursuant to Pa.R.A.P. 1925(b), the court issued its seventy-two page denial of appellant's post-trial motions as its Pa.R.A.P. 1925 (a) opinion. Thereafter, Attorney Medway withdrew as counsel and present counsel, Norris E. Gelman, Esquire, was retained on appellant's behalf.

On appeal, present counsel expressly abandons twenty-three of the twenty-four issues identified as error by trial and post-trial counsel and addressed by the trial court in its opinion. In addition to the one issue retained, counsel raises four issues which challenge the accuracy of certain jury instructions and allege that prior counsel were ineffective for failing to raise and/or preserve the issues.

As all of appellant's present issues challenge the effective representation of some or all prior counsel, we will address the standard of review to be applied to all of the ineffectiveness claims at the outset. In order to prevail, appellant must demonstrate that the claim is of arguable merit, that counsel's action or omission had no reasonable basis designed to effectuate appellant's interests and that counsel's faulty stewardship prejudiced appellant. See, Commonwealth v. Jones, Pa. , , 683 A.2d 1181, 1188 (1996); Commonwealth v. Lam, Pa. Super. , , 684 A.2d 153, 158 (1996). A presumption of effectiveness exists, so the burden of establishing ineffectiveness lies solely with appellant. Jones, Pa. at , 683 A.2d at 1188.

Appellant's initial argument avers that trial counsel were ineffective for permitting the jury to be instructed that appellant could be found guilty of murder either as a principal or as an accomplice. More specifically, appellant contends that, although sufficient evidence was adduced to prove his culpability as an accomplice, the evidence was legally insufficient to prove his guilt as a principal actor. Therefore, appellant argues, because his conduct cannot be termed a direct and substantial cause of the victim's death, the jury instruction was fundamentally flawed.

When reviewing challenges to the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the Commonwealth, as verdict winner, and determine whether sufficient evidence was proffered to prove each element of the crime beyond a reasonable doubt. This standard applies equally to both direct and circumstantial evidence, provided that the culmination of the evidence is sufficient to prove guilt beyond a reasonable doubt. See, e.g., Commonwealth v. Cox, Pa. , , 686 A.2d 1279, 1285 (1996); Commonwealth v. Murphy, 540 Pa. 318, , 657 A.2d 927, 930 (1995).

In support of his argument that the evidence was legally insufficient to prove his guilt as a principal actor, appellant offers the testimony of Dr. Isadore Mihalakis, who testified as an expert witness for the Commonwealth. Dr. Mihalakis stated unequivocally that the five body wounds suffered by the victim were inflicted prior to the three head wounds and that at least two of the five body wounds were lethal independent of the later-inflicted head wounds. When asked, in his expert opinion, whether the victim was alive at the time the last three bullets were fired, Dr. Mihalakis testified that "he was either in profound shock [or] at or near death's door when he suffered these." N.T. 6-17-91 at 99. Additionally, Dr. Mihalakis testified that the facial wounds were inflicted at a range of just inches from the victim's head and were independently lethal. Id.

Based upon this testimony, appellant argues that, depending on the time differential between the first and second set of shots, appellant either shot a dead body or a victim who was so near to death that the later wounds ...


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