Appeal from the Judgment of Sentence Entered on August 3, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013711-2010
BEFORE: BENDER, P.J., LAZARUS, J., and FITZGERALD, J. [*]
Appellant, Edilberto Cruz Castro, appeals from the judgment of sentence of an aggregate term of 26 – 52 years' incarceration imposed following his conviction for third degree murder and two violations of the Uniform Firearms Act. Appellant contends the trial court erred when it prevented him from correcting the statement of a cooperating witness who misrepresented to the jury the maximum sentence the witness faced had he not entered into a favorable plea agreement with the Commonwealth that secured his testimony against Appellant. Appellant also asserts the trial court erred by admitting the preliminary hearing testimony of a witness who was not proven to be unavailable, and where there was not a full and fair opportunity to cross-examine the witness at the hearing. Appellant also contends that the trial court erred by issuing a jury instruction regarding flight. After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
On July 2, 2010, Robert Torres advised Rene Ortiz Acevedo that someone had stolen crack cocaine from him. Shortly thereafter, Rene Ortiz Acevedo picked up Robert Torres in his burgundy Jeep Cherokee from outside the former's apartment. The two men drove to a Chinese store on the corner near Rene Ortiz Acevedo's apartment where they picked up [Appellant] and Darnell Watson. At that time Robert Torres was in the driver's seat, while [Appellant] sat in the front passenger seat. Rene Ortiz Acevedo and Darnell Watson sat in the back passenger seats. About twenty minutes later, at about 8:53 p.m., the four (4) men arrived at 4th and Ashdale Streets, where they found Benjamin Tucker and his friend. The men believed that Mr. Tucker was the person who had stolen drugs from Robert Torres.
Robert Torres and Darnell Watson remained seated while [Appellant] and Rene Ortiz Acevedo exited the vehicle and approached Mr. Tucker and his friend. Rene Ortiz Acevedo tried to grab Mr. Tucker in an effort to pull him into the vehicle, but Mr. Tucker pushed him away. During the struggle, Mr. Tucker's friend managed to escape. [Appellant] then pulled out a gun and shot Mr. Tucker in the chest. After Mr. Tucker fell to the ground, [Appellant] stood over the victim and shot him two more times. [Appellant] and Rene Ortiz Acevedo then returned to the Jeep Cherokee, and the men drove away, turning left onto 4th Street. When they reached an alley, all four men abandoned the vehicle and ran away from the scene. On July 3, 2010, Detectives Thorsten Lucke and Tracy Byard recovered video surveillance from Elvis Grocery store located at 326 West Ashdale Street. The video displayed a confrontation that involved people who were in a dark colored SUV that arrived on location at 20:52:36 and left going eastbound on Ashdale Street at 20:53:10.
Police Officer Michelle Long responded to the crime scene immediately after the shooting and observed Mr. Tucker lying on the ground. The victim displayed an obvious wound, and he was able to point to the side of his chest after being asked where he had been shot. The victim also indicated that he could not identify his shooter when Officer Long asked him if he could identify the perpetrator. Officer Long remained with the victim until rescue arrived.
At approximately 9:24 p.m., Benjamin Tucker was pronounced dead. Dr. Gary Collins, Deputy Chief Medical Examiner, conducted an autopsy of the victim and testified at trial as an expert in forensic pathology. Dr. Collins concluded to a reasonable degree of scientific and medical certainty that the cause of Mr. Tucker's death was multiple gunshot wounds. Mr. Tucker's injuries included a perforating gunshot wound to his chest. The bullet entered the right side of Mr. Tucker's chest and exited the right side of his back. This bullet travelled through the chest, through the right atrium, through the right lung, and through the soft back muscle tissues before it exited Mr. Tucker's body. In addition, Mr. Tucker suffered a graze wound to his left shoulder, a superficial wound to his left cheek with a bullet fragment inside, and an abrasion on the right side of his flank. The graze wound and chest wound were inflicted by two separate bullets. The bullet fragment found in Mr. Tucker's cheek appeared to have ricocheted onto his skin. The bullet that pierced through Mr. Tucker's right atrium caused significant internal bleeding, causing the victim to bleed to death. Dr. Collins also concluded to a reasonable degree of scientific and medical certainty that the manner of Benjamin Tucker's death was homicide. Dr. Collins observed on Mr. Tucker's body stippling marks, which indicate that the gun was fired within one to three feet from the victim.
On July 3, 2010, at approximately 12:05 a.m., Police Officer William Trenwith responded to the crime scene and recovered two .40 caliber fired cartridge casings, one copper fragment and one lead fragment directly across the street from the 400 block of West Ashdale Street. In addition to retrieving ballistics evidence, Officer Trenwith also found a hat and sneakers. While at the crime scene, Officer Trenwith, then assigned to the Crime Scene Unit, took photographs, prepared a scaled sketch of the crime scene, and submitted a report.
Officer Trenwith submitted the ballistics evidence to the Firearms Identification Unit for examination. A latent fingerprint examination on the ballistics evidence was attempted, but no fingerprints were found. Police Officer Ernest Bottomer, an expert in firearms identification and ballistic evidence, examined the ballistics evidence and prepared a report. After examining the two .40 caliber fired cartridge casings, Officer Bottomer determined that they were both fired from the same firearm. He was unable to compare [the] same to a gun because one had not been submitted for examination. Officer Bottomer examined a lead bullet core and a bullet jacket and was unable to determine their exact caliber. Officer Bottomer was also unable to compare the uncoated lead fragment taken from the victim's left cheek to any other ballistics evidence because it was unsuitable for microscopic examination. At trial, Officer Bottomer explained that a .40 caliber semiautomatic travels about 900 to 950 feet per second when it leaves the gun barrel.
Officer Daniel Gilmore also responded to the original crime scene. While securing the scene, he was met by [two witnesses, ] Dr. Juan Ignacio Espinoza and Michael Roseboro. At the direction of his sergeant, Officer Gilmore remained with Dr. Espinoza and Mr. Roseboro until the detectives could interview them. While they waited for detectives, Mr. Roseboro indicated that a vehicle was involved in the shooting. Dr. Espinoza told Officer Gilmore that he had witnessed the shooting as he was driving on 4th Street. He also saw the two perpetrators get back into a vehicle and flee the scene. Dr. Espinoza followed the vehicle and obtained the license plate. While chasing the vehicle, Dr. Espinoza called 911. After reporting the vehicle's license plate, Dr. Espinoza returned to the crime scene and found the victim drowning in blood. Dr. Espinoza remained [at] the scene and waited for police to arrive. Dr. Espinoza informed Officer Gilmore that a burgundy Jeep Cherokee was involved in the shooting and gave him the license plate number that he had obtained.
Approximately five minutes after the shooting, Police Officer Brian Hilbert found the Jeep Cherokee in an abandoned lot at the corner of Front Street and Roosevelt Boulevard, approximately three blocks away from Ashdale Street. The driver door of the Jeep Cherokee was open and the motor was still running. Officer Gilmore drove Dr. Espinoza and Mr. Roseboro to view the Jeep Cherokee for identification purposes. About one hour after the shooting, Dr. Espinoza confirmed that the Jeep Cherokee was the vehicle involved in the shooting. The vehicle matched the description that he had provided to Officer Gilmore. After this identification was made, police photographed the vehicle and towed it to a garage.
When the Jeep Cherokee was processed, police found fingerprints of Letitia Marquez. On August 5, 2010, Letitia Marquez was interviewed. During this interview, she informed police that the Jeep belonged to her mother's boyfriend, Rene Ortiz Acevedo. After being shown a photograph of Rene Ortiz Acevedo, she identified him as "Rico" and signed and dated the photograph. After interviewing Letitia Marquez, Detective Byard requested that her mother, Glorimar Marquez, be interviewed. On August 7, 2010, police interviewed Gloria Marquez. After being shown a photograph of Rene Ortiz Acevedo, she identified him as "Rico" and signed and dated the photograph. During this interview, Glorimar Marquez was also shown photographs of Robert Torres and [Appellant]. She identified Robert Torres as "Memo" and [Appellant] as "Pella" and signed and dated each photograph.
Shortly after Glorimar Marquez's interview, Rene Ortiz Acevedo surrendered himself to police. On August 10, 2010, Rene Ortiz Acevedo provided a statement to police, which he signed and dated. During the interview, Rene Ortiz Acevedo was shown a photograph of Robert Torres, whom he identified as "Memo, Munchow." Rene Ortiz Acevedo signed and dated the photograph. Rene Ortiz Acevedo was also shown a photograph of [Appellant], whom he identified as "Pella." He signed and dated the photograph. A follow up interview of Rene Ortiz Acevedo was conducted by Detective Phillip Nordo on August 11, 2010. In his second statement to police, Rene Ortiz Acevedo identified Darnell Watson as the fourth person inside the car during the shooting. After being shown a photograph of Darnell Watson, Rene Ortiz Acevedo signed and dated the photograph. Based on Rene Ortiz Acevedo's interview, police brought Darnell Watson in for questioning.
On August 10, 2010, Officer William Hunter, from the Dangerous Drug Offender Unit of the District Attorney's Office, was working in plainclothes when he was assigned to search for [Appellant] and Robert Torres. Around 1:00 p.m., Officer Hunter saw Robert Torres driving a red pickup truck near 5th and Westmoreland Streets, one block away from 5th and Allegheny Streets. Officer Hunter exited his unmarked patrol car and walked toward Robert Torres's vehicle. At that time, Officer Hunter made eye contact with Robert Torres, who immediately drove northbound on 5th Street at a high rate of speed. Officer Hunter followed the car and notified police radio of Torres's flight. Robert Torres drove around the block and returned to 5th and Westmoreland Streets, where the vehicle was initially parked. Officer Hunter stopped the vehicle and found [Appellant] sitting in the passenger seat. At that time, additional officers responded. Shortly thereafter, police transported [Appellant] and Robert Torres to the Homicide Unit.
On May 17, 2012, Rene Ortiz Acevedo pled guilty to third-degree murder and criminal conspiracy to commit murder. He was offered a twelve and one-half (12 1/2) to thirty (30) year prison sentence if he testified "truthfully and completely before any grand jury or any hearing or trial in this case in which the assistant district attorney requests him to testify." Rene Ortiz Acevedo was also advised that he would be prosecuted for perjury if he made a false statement under oath. As a result of this plea agreement, Rene Ortiz Acevedo testified against Robert Torres and [Appellant].
In August 2010, Darnell Watson met Edward Cameron, the assistant chief of the Homicide Unit in the District Attorney's Office and told him that he feared retaliation from these men because they were dangerous. Although Mr. Cameron explained the relocation program to Darnell Watson, Darnell Watson expressed no interest in being enrolled. On November 2, 2010, the Honorable Benjamin Lerner signed an order granting Darnell Watson immunity in this case. Darnell Watson was subpoenaed to testify as a Commonwealth witness at trial, but he failed to appear. As a result, this court determined that he was unavailable and that [Appellant] had been provided a full and fair opportunity to cross-examine him at the preliminary hearing. Consequently, the jury was able to consider Darnell Watson's preliminary hearing testimony as substantive evidence.
[Appellant] and Robert Torres were tried jointly before a jury, [and] both were found guilty of third[ ]degree murder, and carrying a firearm without a license in violation of Section 6106 of the Uniform Firearms Act, and carrying a firearm on public streets or property in Philadelphia in violation of Section 6108 of the Uniform Firearms Act on June 6, 2012.
Trial Court Opinion (TCO), 1/17/13, at 2 – 9.
Appellant now presents the following questions ...