Argued May 8, 2012.
No. 605 CAP, Appeal from the Judgment of Sentence
entered on October 22, 2008 in the Court of Common Pleas, Criminal Division
of Bucks County at CP-09-CR-0001136-2008. On December 8, 2009 the trial
court judge reinstated appeal rights allowing defendant to file notice of
appeal nunc pro tunc. Trial Court Judge: Alan M. Rubenstein, Judge.
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Stuart Brian Lev, Esq., Helen A. Marino, Esq., Defender Association of Philadelphia, for Alfonso Sanchez.
Thomas Gary Gambardella, Esq., Office of the District Attorney, Stephen B. Harris, Esq., Michelle Ann Henry, Esq., Robert J. Salzer, Esq., Maureen Flannery Spang, Esq., Bucks County District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.
Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This is a direct appeal nunc pro tunc from a death sentence imposed after a jury convicted Appellant of two counts of first-degree murder for the shooting deaths of Mendez Thomas and Lisa Diaz, both of whom were killed by gunshots to the head fired at close range. The jury concluded, with respect to the circumstances of the murder of Mendez Thomas, that the aggravating factors did not outweigh the mitigating factors, and thus imposed a sentence of life imprisonment. With respect to the murder of Lisa Diaz, the jury concluded that the aggravating factors, which included that the killing occurred during perpetration of a felony burglary and that Appellant had murdered Mendez Thomas only seconds before, outweighed the mitigating circumstances. Thus, the jury imposed a sentence of death for that offense. The main issue presented in the present appeal is whether the evidence was sufficient to support the jury's verdicts of guilty with respect to burglary and conspiracy to commit burglary. Appellant argues that because there was insufficient evidence to prove that the killings had been committed during the perpetration of a felony, the jury considered a non-existing
aggravating circumstance when it imposed the sentence of death. For the reasons that follow, we affirm.
The facts, when viewed in the light most favorable to the Commonwealth as verdict-winner, are that on October 16, 2007, Appellant and two co-conspirators, Alex Martinez (" Martinez" ) and Steven Miranda (" Miranda" ) (collectively " the trio" ), spent the evening hours smoking marijuana and drinking alcohol at various locations in Philadelphia and Bucks County. At some point during the night, the trio decided that they would go to the Bucks County apartment of Mendez Thomas (" Thomas" ) to assault him. Miranda arranged by phone to meet Thomas under the ruse of wanting to procure marijuana. Appellant drove the trio to Thomas's apartment in a tan Ford Explorer. When they arrived near midnight, Thomas and his paramour, Jessica Carmona (" Carmona" ), who shared the apartment with Thomas and their two young children, were not home. Instead, Lisa Diaz (" Diaz" ), the sister of Carmona and the girlfriend of Miranda, was in the apartment with the two children. She opened the door to Miranda and the trio entered.
Several minutes later, Thomas and Carmona arrived, and shortly thereafter, a physical and verbal altercation between Thomas and Appellant ensued during which Appellant displayed a gun. Thomas began to retreat down a hallway toward a bedroom. Appellant advanced into the hallway and shot Thomas in the head from a distance of six to ten inches, killing him instantly. Appellant emerged from the hallway, turned, and fired two shots at Diaz, one of which struck her in the shoulder, and she fell to the floor. Appellant then advanced to where she lay and shot her in the head. Prior to fleeing the apartment, Appellant fired a shot at Carmona, who was in a protective fetal position on the floor, shielding her two-year-old son beneath her. The bullet passed completely through Carmona's leg, and she was able to get up and call 911. She informed the dispatcher that numerous persons had been shot, identified " Alfonso" as the shooter, and stated that the shooting had been " a set-up." Notes of Testimony (" N.T." ) Trial, 9/22/08, at 176.
The next day, Martinez and Miranda voluntarily surrendered themselves to police and gave statements that implicated Appellant as the shooter, and asserted that the purpose of their collective visit to the apartment had simply been to purchase marijuana, and not to assault anyone. Both men were charged with multiple counts of criminal homicide and related offenses including burglary and conspiracy to commit burglary for their roles in the events of the previous night. Appellant, meanwhile, had fled to Altoona, but soon returned to Horsham, Montgomery County, to the home of a boyhood friend. He was apprehended there on October 25, 2007, while attempting to conceal himself in an upper floor bathroom of that residence. Three days later, the police recovered the Ford Explorer that Appellant had been driving on the night of the killings. The vehicle was registered in the name of Appellant's mother, and a 9 mm. handgun, later determined to be the murder weapon, was retrieved from the rear passenger-side floor of the vehicle. Appellant was charged with multiple counts of criminal homicide and related offenses, including burglary and conspiracy to commit burglary.
Appellant, Martinez and Miranda each had separate counsel, and their joint preliminary hearing was scheduled for November 2, 2007. It was continued first until December 7, 2007, at the request of Appellant's counsel, Jack McMahon, and then twice more, both times at Mr. McMahon's
request, until February 8, 2008. On that date, counsel for Appellant's co-defendants were present, but Mr. McMahon failed to appear; the Magisterial District Justice conducted the preliminary hearing despite Mr. McMahon's absence, and all charges against all defendants were held for court.
Thereafter, Mr. McMahon filed a motion requesting a remand for a preliminary hearing, and a hearing on the remand motion was scheduled for March 7, 2008. On that date, the court received a letter by facsimile indicating that Mr. McMahon was out of the country on a pre-paid vacation until March 15, 2008; the court dismissed the remand motion. Ultimately, despite the court's dismissal of the motion, the Commonwealth agreed to re-conduct Appellant's preliminary hearing. On May 22, 2008, a second preliminary hearing just for Appellant took place with counsel present, and the charges against Appellant, including burglary and conspiracy to commit burglary, were once again held for court.
On September 30, 2008, after a seven-day long jury trial at which Appellant and Miranda were tried jointly, Appellant was found guilty of two counts of murder in the first-degree and fifteen related counts, including burglary, attempted homicide, aggravated assault, possession of an instrument of crime, criminal conspiracy (to commit criminal homicide, burglary, aggravated assault, and possession of an instrument of crime), flight to avoid apprehension, and recklessly endangering another person. On October 2, 2008, with respect to the murder of Lisa Diaz, the jury returned a sentence of death.
The Commonwealth's theory of the case was that Appellant, Miranda and Martinez had conspired to assault Thomas in his apartment using Miranda's association with Diaz and the ruse of attempting to obtain marijuana from Thomas to gain entry. The Commonwealth further theorized that once inside, during the assault on Thomas, Appellant, who had brought a handgun, shot three people, killing two of them. The defense theory of the case was that Appellant had only intended to obtain marijuana from Thomas, had no knowledge of any weapon, and was simply present at the scene when Miranda went on a homicidal rampage.
Dr. Ian Hood, the forensic pathologist who performed autopsies on the bodies of Thomas and Diaz, testified at trial that Thomas had suffered a single, immediately fatal gunshot wound to the head, fired from a distance of six to ten inches. He further testified that Diaz had been shot twice: once in the right shoulder, which would not normally have been a life-threatening wound, and once in the head, which had been a rapidly fatal wound. He testified that Diaz had been shot from a distance of up to three feet.
Detective James Boston of the Warminster Township Police Department testified that he was part of the team responsible for processing the crime scene on the night of the shootings, and he described the apartment, the locations of the victims, and the recovery of 9 mm. caliber shell casings, bullets, and bullet fragments from the crime scene. He testified that he had recovered bullets and/or fragments from within the wall in the hallway next to where Thomas's body had been found; from within a closet door in the living room; from within linens and sheets in that closet; and also from the concrete in the floor beneath the living room carpet. He testified that the fragment below the carpet had been part of a bullet that had passed through a child's play-pad lying on the floor. He also testified that a .45 caliber handgun had been found in a rear-bedroom closet.
Officer Sean Harold of the Warminster Township Police Department testified that Miranda and Martinez had voluntarily surrendered themselves to police on October 17, 2007, and that at that time, Appellant had not yet been located. He also testified that on October 28, 2007, he recovered a 9 mm. Hi-Point Luger from the rear passenger-side floor of a tan Ford Explorer registered to Darlene Sanchez, Appellant's mother. Montgomery County Detective John Finor, a firearms and ballistics expert, testified that, by using tool-mark identification procedures, he had determined that the bullets, fragments and casings recovered from the crime scene had been fired from the 9 mm. Hi-Point Luger recovered from the Explorer.
Bucks County Detective Mark Zielinski testified that, during a search of the location in which Appellant had been arrested on October 25, 2007, police had recovered a gym bag belonging to Appellant that contained several boxes of black hair dye, as well as newspaper clippings that identified Appellant as " wanted" and warning that he should be considered armed and dangerous. Photos of the newspaper clippings were marked as trial exhibits and entered into evidence. Defense counsel did not object to their admissibility, conceding that they were relevant to show consciousness of guilt. However, counsel did object to publishing a photo of one of the clippings to the jury. Below the main headline, the challenged clipping contained a smaller headline that read: " DA: Two were killed over drug debt." Counsel maintained that there had not been any evidence presented by that point in the trial to substantiate any motive for the shootings. The court agreed, and the photo of that clipping was not published to the jury. A photo of the remaining clipping with a headline that read " Authorities Vow to Find Shooter," that showed a photo of Appellant, named him, identified him as wanted and warned that he should be considered armed and dangerous, was published to the jury. The court gave the jury a cautionary instruction that the photo was introduced only for the limited purpose to show that the newspaper had been in Appellant's possession at the time he was apprehended.
The Commonwealth presented the testimony of the surviving victim, Jessica Carmona. She testified that on October 16, 2007, she and Thomas and their two children were living in apartment number H1-3, a basement unit in the Bucks Landing Apartments located at 120 East Street Road in Warminster, Bucks County. She testified that Thomas had sold marijuana occasionally, and had sold marijuana to Miranda in the past. At approximately 10:30 p.m. on the night in question, she and Thomas had gone to visit a neighbor in an apartment across the hall from theirs. Carmona's sister, Lisa Diaz, remained in the apartment, baby-sitting for the children. While in the neighbor's
apartment, Thomas consumed several beers and smoked some marijuana. Thomas had also taken two prescription Xanax tablets prior to going to the neighbor's apartment.
Sometime between 11:00 p.m. and 11:30 p.m., Thomas received a phone call on his " walkie-talkie" type cell phone, which permitted Carmona to hear both ends of the conversation. The call was from Miranda, Diaz's boyfriend, who inquired about procuring some marijuana from Thomas. Thomas told Miranda that he would call Miranda later to finalize the details of an exchange. During that conversation, Carmona also heard another voice broadcast, pretending to be Miranda; she believed the voice had been that of Appellant, whom Carmona had known from the neighborhood but had not seen for years. Carmona took the phone from Thomas and asked, " Who is this?" to which the caller replied " Steven [Miranda]," to which Carmona retorted, " This is not Steven." N.T. Trial, 9/22/08, at 149-151.
Carmona further testified that when she and Thomas later returned to their own apartment, they found Miranda, Martinez, and Appellant there with Diaz and the children, and Diaz, by her mannerisms and facial expression, appeared to be frightened. Appellant immediately asked Carmona, " Do you remember me?" and she replied, " Yes, you're Alfonso." Id. at 159. As Appellant asked Carmona this question, he gave her " an intimidating look" by " shaking his head" as if Carmona " had done something wrong to him." Id. at 207-208.
Carmona testified that shortly after this, she saw Thomas accidentally step on Appellant's foot. At first, Appellant responded by " having words" with Thomas, and then he pushed Thomas toward Miranda. Id. at 161-162. At that point, Diaz placed herself between Thomas and Appellant, and said, " No. This is not going to happen." Id. at 163. Carmona testified that she then told Appellant and the others, " You have to get out of my house." Id. She further testified that Miranda then handed a CD player and headphones to Martinez. At that point, Thomas began walking from the living room toward a hallway leading to a bedroom. Carmona testified she then saw Appellant walk toward the hallway, draw a gun from his waist and raise it. Carmona then screamed out to Thomas " get the gun," referring to a .45 caliber handgun she kept in a closet in the bedroom. Id. at 226. Carmona testified that she saw Appellant point the gun he had drawn from his waist at Thomas and pull the trigger, and heard the shot but did not see Thomas fall because her view was obstructed by the hallway wall. Carmona further testified that Miranda and Martinez fled together immediately after Appellant shot Thomas.
Carmona testified that within seconds after firing the first shot, Appellant turned to his left and shot Diaz, who fell to the ground. At the time, Carmona's daughter was on the couch approximately two feet from Diaz. Appellant took several steps forward, " and he shot her [Diaz] again." Id. at 171. Carmona testified that she grabbed her son at that point and " I covered him. I fell to the floor, and covered him, because I knew I was going to be next." Id. at 172. She testified that she assumed a fetal position on the floor, covering her son with her entire body. When asked by the prosecutor, " After you covered your son, in that fetal position, what happened next?" Carmona replied, " [Appellant] shot me." Id. After shooting Carmona, " [Appellant] ran out the door." Id. at 173. Carmona testified that after Appellant fled, she checked on Thomas, who was not moving, and Diaz, who was making " gurgling" sounds, and she then
took her children " across to the neighbor." Id. at 174-175. Carmona testified that " as soon as I took the kids across the hall ... I came back in and dialed 9-1-1." Id.
At that point in the trial, the parties stipulated to the admissibility and accuracy of an audiotape recording of the 911 call, which was played for the jury. A transcript of the call was also distributed to the jurors to permit them to follow and read along as the tape was played. During the call, Carmona told the dispatcher that " Alfonso" had been the gunman, and that the incident had been a " set up."  Id. at 176. When asked by the prosecutor why she had used the words " This was a set up" during her call to 911, Carmona replied, " What made me say that, was because [Appellant] didn't know where I lived, and [Miranda] did." Id. at 179. Moreover, Carmona testified that during the time she " was on the phone with 9-1-1," she had been searching for her handgun but could not find it, so she told the dispatcher that she thought her gun had been taken by Appellant. Id. She then testified that after the police arrived, they " went to go look for it [her gun], they found it." Id. She concluded her direct-examination testimony by stating that she had no doubt in her mind that Appellant had been the person who had shot her and who had killed Thomas and Diaz. Id. at 180.
The Commonwealth also presented the testimony of Betsy Lopez, who related that she had known Miranda since he had been " seven or eight years old," and that Diaz had been " one of my best friends." N.T. Trial 9/22/08, at 106-108. Ms. Lopez also testified that she had dated Appellant briefly. She testified that one week before the killings, Miranda had told her that he was " selling cocaine to pay off a debt to someone else." Id. at 111. She further testified that on the night of the killings, she was with Diaz in the apartment at approximately 11:40 p.m., when Diaz received a call from Miranda on a walkie-talkie type cell phone, indicating that he was coming over shortly. He did not mention that anyone else was with him. Ms. Lopez left the apartment within a few minutes after the call concluded.
Martinez testified at trial that at approximately 5:30 p.m. on the evening of the shooting, he had seen Miranda with Diaz in a parking lot in Warminster. After Diaz left, Martinez joined Miranda, and Appellant pulled up shortly thereafter in his Explorer, telling them to get in. Appellant first drove the trio to a liquor store, where Appellant purchased a bottle of vodka, and then to the home of a friend of Appellant in Hatboro, Bucks County. At the Hatboro residence, the trio and Appellant's friend drank vodka and smoked marijuana and Appellant's friend smoked " crack" while Appellant repeatedly played a song on his friend's sound system entitled " Somebody's Gonna Die Tonight" by a rap artist named " 50 Cent." N.T. Trial, 9/28/08, at 101-104. At some point, Appellant received a call on his cell phone and informed Martinez and Miranda that it was time to go. He then drove them to a garage in Philadelphia, where Appellant and Miranda met with a male named Angel for approximately twenty minutes in a room separate from the room in which Martinez remained watching television. Appellant then drove the trio to a parking lot across the street from the home of
Appellant's girlfriend, Amber Schempp, in Warminster Heights, where the trio sat inside the Explorer and continued to smoke marijuana.
While sitting there, Appellant told Miranda " out of the blue, call that person you been having problems with, Mendez [Thomas]." Id. at 110. Miranda made the call, asked Thomas if he had any marijuana, and Thomas answered that he did. The call was made on a walkie-talkie type cell phone, so Martinez could overhear both ends of the conversation. Martinez then testified as follows:
And that's when I seen [Appellant] lean over toward [Miranda] and snatch the phone out of [Miranda's] hand and he tried to disguise his voice to sound like [Miranda] and he numerous times kept asking [Thomas] do you have an eight ball of coke? Do you have an eight ball of coke? And [Thomas] kept telling him, no.
Id. at 116.
Martinez also testified that Appellant told Miranda " when we go over to his apartment, if you are going to fight him, don't bullshit[.]" Id. at 114. Martinez explained that " not to bullshit" meant that Miranda " should prove himself to [Appellant]." Id. at 115. Martinez continued, " He [Appellant] is talking to Steven [Miranda], telling him not to bullshit. If you are going to fight Mendez [Thomas], to fight him." Id.
Martinez testified that following the call with Thomas, Appellant had very briefly gone inside his girlfriend's house, and that when he returned, he drove the trio to a convenience store on Street Road in Warminster, where Appellant bought " blunts" and Martinez bought snacks while Miranda remained alone inside the vehicle. Id. at 119. Thereafter, Appellant drove a short distance via an indirect route suggested by Miranda to a street adjacent to the parking lot of the apartment complex in which Thomas resided. The trio got out of the vehicle and walked down a pathway to Thomas's apartment building. Martinez testified that he agreed to go into the apartment because if Miranda needed assistance in " fighting" Thomas, then Martinez would " have to fight, too." Id. When the trio arrived at the apartment door, Miranda and Martinez stood directly in front of the door, but Appellant stood off to the side.
Martinez testified that Miranda knocked on the apartment door and Diaz opened the door, greeting Miranda with a hug and kiss. Martinez followed Miranda into the apartment and Diaz greeted him in a friendly manner as well, calling him by his nickname " Doobie." Id. at 130. Martinez testified that Appellant had been the last to enter the apartment, and that upon Appellant's entry, Diaz suddenly appeared " terrified," as if she had " just seen the devil walking into the apartment." Id. at 131. Martinez testified that he saw two children in the apartment, a little girl sleeping on the couch, and a little boy running around in circles. Miranda asked Diaz where Thomas was, and she answered that he was next door visiting a neighbor.
Martinez further testified that within two minutes of his arrival with Miranda and Appellant, Thomas and Carmona entered the apartment. Miranda, who had been holding a CD player, attempted to hand the CD player to Martinez in his preparation to " fight" Thomas, but Martinez " shook [his] head no," declining to take it. Id. at 139-140. At that point, Appellant shoved Thomas toward Miranda, telling Thomas to " watch where you're walking." Id. at 142. Diaz and Carmona then attempted to intervene between Appellant and Thomas. Thomas began walking toward the hallway, and Appellant began
running toward him. As Appellant ran toward Thomas, Martinez saw Appellant draw a black handgun from his waist, saw a " flash go through the hallway," and heard a " loud bang" and " something fall in the hallway." Id. at 144-147. Martinez then ran out of the apartment, following Miranda, who had already fled. Martinez testified that just past the landing outside the apartment door, while he was running up the steps to flee the building, he heard three or four more shots.
Martinez additionally testified that once outside the building, as he was running away, he realized Appellant was chasing him, gun in hand. Appellant caught up to Martinez in a wooded area, knocked him down and asked him, " [W]here the fuck do you think you're running to?" Id. at 160. Appellant ordered Martinez to " get up" and Martinez " surrendered" himself to Appellant. Id. at 161. Appellant directed Martinez at gunpoint to walk through the woods to Appellant's girlfriend's house. They arrived within five minutes and were admitted, and Appellant told his girlfriend that he had shot and killed Thomas and Diaz and that he had shot Carmona " but he wasn't sure if he killed her because he wasn't focusing on aiming at his target." Id. at 163-164.
Martinez testified that Appellant's girlfriend retrieved Appellant's vehicle, after which Appellant then drove Martinez to Philadelphia. While on the way, Appellant called someone on the phone and said " I'm going to call my sister and have her open the back door for you." Id. at 167. Appellant then drove to his sister's residence where they found Miranda and spent the night. The trio separated the next morning when Appellant left on foot, and Miranda drove the vehicle to a location near a day-care center and parked it. Before Miranda and Martinez surrendered themselves to police later that day, Miranda told Martinez to tell the police that it was Martinez, not Miranda, who had called Thomas the previous night. After they had surrendered themselves, Miranda had become " stressed" and " worried" because he thought a " bullet" had been accidentally dropped at the location where he had parked Appellant's vehicle earlier that morning. Id. at 182-185.
Additionally, on direct examination, Martinez testified that portions of the statement he had given to police on the day after the killings had been untrue. Specifically, Martinez testified that at Miranda's urging, he had initially told police that the trio had only gone to the apartment to purchase marijuana, and that it was Martinez, not Miranda, who had called Thomas. At trial, Martinez admitted that those statements had been purposefully false, and, during cross-examination by Appellant's counsel, he testified that certain other factual portions of his earlier statement to police regarding where and with whom he had gone after the shootings had also been lies. He also admitted that, at Miranda's behest, he had lied when he told the police that, during the altercation in the apartment, Diaz had urged Thomas to retrieve a gun, stating during his testimony that " that never happened." N.T. Trial, 9/25/08, at 118. Additionally, on cross-examination, Martinez affirmed that there had been " no trickery" to get into the apartment, that the trio had not entered the apartment " under false pretenses," and that an exchange of cash for marijuana between Miranda and Thomas had taken place shortly after the trio arrived. Id. at 99-110. On re-direct, Martinez testified that the purpose of the trio's visit to the apartment was for Miranda to fight Thomas in order to prove himself to Appellant, and that purchasing marijuana was a ploy in order to gain entry, and that Miranda had not revealed to Thomas or Diaz that Appellant would be coming
along. He also testified that his trial testimony had been the truth.
At the close of the Commonwealth's case-in-chief, Appellant and Miranda both argued motions for judgment of acquittal as to the charges of burglary and conspiracy to commit burglary. They argued that the Commonwealth's evidence was insufficient for the jury to reasonably conclude that the trio had entered the apartment with the intent to commit an assault therein. The Commonwealth responded that Martinez's testimony provided sufficient evidence to establish the crimes of both burglary and conspiracy to commit burglary. The court denied the motions.
Appellant testified in his own defense. He testified that on October 16, 2007, he had been visiting his girlfriend in Warminster and had been trying to phone Miranda all day in order to get some marijuana from him. He finally reached Miranda at about 5:00 or 5:30 that evening and asked him for some marijuana. When Miranda replied that Appellant should meet him " up in the park," Appellant drove his Explorer to a park on Evans Street in Warminster and saw Miranda there with Martinez. N.T. Trial, 9/26/08, at 34. Appellant told them both to get in, and he then drove to a liquor store where he purchased a bottle of vodka. He then drove the trio to the home of a friend of his in Hatboro, where everyone drank and smoked Miranda's marijuana for a number of hours. Id. at 36-38. When the marijuana ran out, Miranda asked Appellant to drive him to Northeast Philadelphia so he could buy some cocaine, which Appellant agreed to do in exchange for more marijuana. Appellant then drove Miranda and Martinez to a residence in Northeast Philadelphia, and Miranda went inside by himself for approximately five minutes.
When Miranda returned, Appellant began driving the trio back to Warminster, and Appellant asked Miranda " if he had that weed." Id. at 41. Miranda replied that he had none, and would have to call someone. Miranda then used his walkie-talkie type cell phone to call " a dude named Dez," ( i.e., Mendez Thomas). Id. at 41-42. Appellant testified that he could hear both ends of the conversation and that he " heard [Miranda] say something about ‘ you got that what you owe me?’ Because he said that Dez had owed him some weed. And Dez said, ‘ yeah, I got it. Come to my house.’ " Id. at 42. Appellant testified that he did not know anyone named " Dez," that the foregoing was the full sum and substance of the conversation, and that the conversation had been between Miranda and " Dez" only.
Appellant testified that he then drove to a 7-11 convenience store to buy " blunts," and thereafter, Miranda directed him to drive to a " back spot ... he [Miranda] took us to this alleyway to walk to the apartments, and that's when we went to Jessie's [Carmona's] house." Id. at 43-44. Appellant testified that he and Martinez followed Miranda to the apartment, where Miranda knocked on the door and Diaz, Miranda's girlfriend, whom Appellant had met before, opened the door and greeted everyone in a friendly manner, including Appellant. He testified that she did not appear frightened, and that he had never had a problem with her. He testified further that there were no children in the room.
Appellant then testified that within two minutes of the trio's arrival at the apartment, Thomas and Carmona entered. Appellant testified that he had been standing next to the doorway, with his back against the wall when they entered, and that he had not been paying much attention to what was going on because he was under
the influence of alcohol and marijuana, and because his concentration had been fixed on his phone, which he had been " playing with." Id. at 48-51. He did notice that Carmona, upon entering the apartment, had immediately gone to Diaz, and that they both had been sitting on a couch in the living room, and that Thomas had gone immediately to Miranda, and Appellant " thought" that " they was making a trade for the weed." Id.
Appellant's testimony on direct examination continued as follows:
Q: Okay. Now, while you're standing there in this condition that you've described, and they are doing what you think they're doing, what happens next?
A: I was still messing with my phone for like, about ten more seconds, and all of a sudden [Thomas], he took like three big, fast steps towards me.
Q: Away from Steven Miranda?
A: Away from Miranda, and he kind of almost nudged into me. But then I seen him take off towards the hallway, and that's when I seen Miranda chasing after him, behind him, and I looked up to see what was going on, and all of a sudden it was a big flash, boom, and I just turned around, opened the door, and ran out and Martinez ran out behind me.
Id. at 51-52.
Appellant next testified that the " boom" sounded like a gunshot and that as he ran from the apartment, he heard more gunshots. Id. at 53. Immediately following the above testimony, as Appellant's counsel attempted to elicit responses from Appellant regarding precisely where everyone in the room had been and in which directions everyone had moved when the shooting started, Appellant's counsel asked for a sidebar conference, at which the following exchange took place:
MR. McMAHON: Judge the two detectives that are sitting there at the table, and I'm standing right next to them, they are laughing. They are rolling their eyes. They were. I want them excused from the courtroom now.
THE COURT: Hold on, please. Hold on. I did not observe it. I have a view of the entire courtroom. I'll direct you, Mr. Gambardella, very calmly—
MR. GAMBARDELLA [the prosecutor]: Sure.
THE COURT: — to say to them they are to remain stoic, and unemotional, and say nothing. I'm not suggesting it did occur, but it will not occur any further if it has.
MR. GAMBARDELLA: I had been standing right there.
THE COURT: Did you see it?
MR. GOODWIN: [Counsel for Miranda] I was not paying attention to them.
THE COURT: How about you?
MR. ABAZA: [Co-counsel for Miranda] I did see smiling.
THE COURT: Well, that has to stop.
MR. McMAHON: I didn't make it up Judge, I'm not—
THE COURT: Your credibility is not an issue. I'm saying that I didn't see it, but it will not occur.
MR. McMAHON: Thank you.
MR. GAMBARDELLA: I'll tell them right now.
Id. at 56-57.
Counsel did not ask for a cautionary instruction and the court gave none. Appellant next testified that after fleeing the apartment, he and Martinez ran toward the home of Appellant's girlfriend and arrived there within five minutes of the shooting. Appellant did not tell his girlfriend anything about the events that had
just occurred, but " just told her to get my truck because I was too drunk to drive." Id. at 59-60. Appellant testified that when his girlfriend retrieved the vehicle, he " grabbed the keys off her, and I told her I had to take Martinez somewhere, and I said he was going to drive because I can't drive, but I took the keys anyway and I drove." Id. at 62.
Appellant testified that he began calling Miranda to try to locate him, and that ultimately, he and Martinez " met up" with Miranda in Philadelphia, and Appellant drove the trio to the home of his friend Angel Rodriguez, where Appellant told Miranda and Martinez " to wait in the truck" while Appellant checked to see if Rodriguez was home. Id. at 66. Rodriguez opened the door, and Appellant entered and told Rodriguez the " situation, what had happened, but not word for word.... I just said, yo, something terrible happened. We need t[o] chill in here for a little bit, and he is, like, all right." Id. at 67. Appellant testified that as he returned to the vehicle to inform Miranda and Martinez that they could come inside, " they took off with the truck." Id. Appellant testified that he never saw the vehicle again, and that, on the night in question, the only person who had occupied the rear passenger seat had been Miranda. Id. at 68-69.
Throughout his testimony on cross-examination, Appellant continued to present a version of events that conflicted with the versions presented by the Commonwealth's witnesses. For example, Appellant denied that he had taken the phone from Miranda when Miranda called Thomas, and maintained that he had not heard a female voice broadcast over the phone during that conversation. Appellant denied that he had stood to the side when Miranda knocked on the apartment door, and denied that there had been children in the apartment. Appellant denied that Diaz had appeared frightened when he entered the apartment, and denied that he had asked Carmona if she remembered who he was when she entered the apartment or that he had spoken or acted in an intimidating or threatening fashion. Additionally, Appellant denied that Diaz and Carmona had attempted to intervene between Appellant and Thomas. He denied that anyone had urged Thomas to get a gun. Ultimately, Appellant maintained that because he had been inebriated and had been looking down at his phone, he had not seen and did not know precisely what had transpired between Miranda and Thomas prior to when Thomas hurriedly took several steps away from Miranda. Nevertheless, Appellant testified that Miranda had been the shooter, and suggested that Miranda's motive for the killings may have been that Thomas had " owed" Miranda something that had not been repaid, perhaps marijuana or cocaine. Id. at 97-99.
During his closing remarks to the jury, Appellant's counsel frequently suggested that the jury should be skeptical of the testimony of Martinez and Carmona. With respect to Carmona, counsel characterized a portion of her testimony— specifically, her testimony that a verbal and physical altercation between Appellant and Thomas had occurred— as " a total fabrication." N.T. Trial, 9/29/08, at 49. Counsel continued in that manner, as follows:
Interesting in evaluating Jessica Carmona— it's interesting in that we've heard from Alex Martinez ... [that] after March of '08, [he] began to cooperate with the government. And he gave a statement at that time, about this ... CD [player]. Remember that about the CD [player and headphones] being taken off, and that [Appellant] pushed [Thomas] toward Miranda? Do you remember that testimony? [Carmona] knew— I
suggested to you at that point in time— what Martinez was saying[.] I said that because when you look at her preliminary hearing [testimony] and we look at her statement of October 17th, nowhere, nowhere in her testimony under oath or in her statement does this whole concept of headphones come in, [headphones] being taken off, being handed to [Martinez], anything whatsoever, nor does this whole concept of [Appellant] pushing [Thomas] towards [Miranda] ever come into play either. It only comes into play when she testifies here, coincidentally enough after Martinez cooperates with the government and he throws that little fact into the mix, and now she comes forward with it. Why should she leave all those things out, and then just amazingly remembers that now? Because it never happened.
Id. at 50 -51.
Appellant's counsel also highlighted perceived contradictions between the testimonies of Martinez, Carmona, and Appellant with respect to anyone having urged Thomas to " get a gun," as follows:
[Carmona] tells you, in her statements, and everything she says, what I said to [Thomas] was go get my gun[.] ... Mr. Martinez told you [no one said] to go get a gun. And you heard from [Appellant] that that never happened. Why did she [Carmona] add that and what does that mean to this case?
Well, you heard Alex Martinez sa[y] that that never happened. The government's own witness, sat right there and said that never happened. [Appellant] told you that never happened, [that Carmona] never said anything about going to get your gun. Yet, what was interesting about that is, that in Martinez's first statement, the one-the famous lie statement, where he lied, lied, lied, in that first statement. [sic] One of the things he supposedly lied about was that-and he said [Diaz] as opposed to [Carmona], but nonetheless, somebody said go get your gun. And [Martinez] said, I lied about that. That was never said. I lied about that. And, lo and behold, [Carmona] said the same thing. Why did Alex Martinez lie about that? Why did he make that up? He made that up because Steven Miranda told him to make that up. Steven Miranda said to him, make that up about them going to get a gun. Why would Steven Miranda be so concerned of making up a story about the other people going to get a gun? I'll tell you why, because he wants to make it look like he shot in self-defense. That he had no other choice but to shoot. That's why he's telling Alex Martinez to say, she [told Thomas] to get a gun, and you know that's a lie.
Why, Mr. Gambardella? Please tell me why [Miranda] would tell Mr. Martinez to lie about that fact? Why would [Miranda] say, Martinez, when you go in there tell them [Thomas] is going to get a gun; if Mr. Miranda did nothing? He didn't shoot anybody. He didn't have a gun. He wasn't intending to shoot anybody. Why would he make [Martinez] lie about that fact, unless [Miranda] is the one that shot [Thomas] and he's trying to build up some sort of story to try to create some concept of self-defense or justification for his actions.
Interesting enough, then, lo and behold, the statement that we know to be a lie from Alex Martinez's own mouth, a lie ... for Steven Miranda, who comes in and tells that same lie? Jessica Carmona. Hmmm, what a coincidence. Why is she telling the same lie? The same lie. Did someone talk to her too that evening? Because the statement wasn't until that evening on October 17th. Did someone talk to her and tell her that
that's the version that Miranda is putting out there? Why would she lie about that?
Id. at 52-55.
In contrast to his arguments with respect to the credibility of Carmona and Martinez, Appellant's counsel argued in support of Appellant's credibility as follows:
I suggest to you that the demeanor [Appellant] presented to you [during his testimony], in the face of cross-examination by two experienced lawyers, Mr. Miranda's lawyer and Mr. Gambardella, he didn't flinch. He didn't miss a beat. He didn't trip up in any way whatsoever. There wasn't an inconsistency in any way, shape, or form despite all the attempts by everybody who questioned him. And do you know why that is ladies and gentlemen? The reason that is, is because the truth is always the truth. It will remain the truth. You could tell it five years from now. Ten years from now, and it will always be the truth.
He told the story as it was. He never got rattled. He never told a different story. It is the way it was and he defended himself because the truth is the truth whether it's October 16th  or September 28, 2008. The truth will always remain the same and that is what he told you[.]
Id. at 87-88.
During his closing remarks to the jury, the prosecutor noted that Carmona had been a victim of the crimes, had acted heroically in protecting her son, and had never wavered in her identification of Appellant as the shooter. In relevant part, the prosecutor argued as follows:
You heard Mr. McMahon say a lot of things [about Carmona]. I'm just going to— I'm going to suggest to you that there's three things that are undisputable about her. One, she is a victim. She is a victim in so many ways. She not only got shot herself through the leg, but she had to witness the father of her children be killed and within feet of her, her sister, who she is close to, be murdered.
The second thing she is, she is an unimpeached witness. Now, Mr. McMahon wanted to dump on her in so many ways, and really victimized her ...