J-S57010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

AXEL BARRETO

                            Appellant                   No. 1258 EDA 2014


          Appeal from the Judgment of Sentence November 14, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004008-2012
                                         CP-51-CR-0004009-2012


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

JUDGMENT ORDER BY MUNDY, J.:                       FILED DECEMBER 30, 2015

       Appellant, Axel Barreto, appeals nunc pro tunc from the November 14,

2013 aggregate judgment of sentence of life without the possibility of

parole, imposed after being found guilty of three counts of first-degree

murder, four counts of attempted murder, and possession of an instrument

of crime (PIC).1     After careful review, we affirm.

       On appeal, Appellant argues the evidence was “insufficient as a matter

of law where there was no evidence that he had a specific premeditated

____________________________________________


1
  18 Pa.C.S.A. §§ 2502(a), 901(a), and 907(a), respectively. Specifically,
Appellant was sentenced to life without the possibility of parole on each
murder count, 10 to 20 years’ imprisonment on each attempted murder
count, and 2 ½ to 5 years’ imprisonment on the PIC count with each
sentence to run consecutively.
J-S57010-15


intent to kill and where [] Appellant legally established a valid self[-]

defense.” Appellant’s Brief at 14. Additionally, Appellant asserts a claim of

prosecutorial misconduct based on the Commonwealth’s closing arguments.

Id. at 17. Specifically, Appellant argues the Commonwealth implied he was

lying and that he “was picking and choosing additional defense when the

evidence was incorrect for the first defense.”        Id. at 18-19.    Further, he

argues the Commonwealth improperly commented on the truthfulness of

Appellant’s witnesses and Appellant’s failure to present certain witnesses.

Id. at 19.

        Upon careful examination of the certified record, we conclude that the

trial   court   has    authored     a   22-page   opinion   that   thoroughly   and

comprehensively addresses Appellant’s claims.          Accordingly, we affirm on

the basis of the well-reasoned December 4, 2014 opinion of the Honorable

Rose Marie DeFino-Nastasi. We therefore adopt the trial court’s opinion as

our own and incorporate it in this judgment order.2 In the event of further

proceedings, the parties shall attach a copy of the December 14, 2014 trial

court opinion to any filings.




____________________________________________


2
  We express no opinion on the final paragraph of the trial court opinion on
page 21, as that specific issue is not raised by Appellant on appeal, and
therefore, is not presently before us to review.



                                           -2-
J-S57010-15


      Based on the foregoing, we conclude Appellant’s issues on appeal are

devoid of merit. Accordingly, the trial court’s November 14, 2013 judgment

of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




                                   -3-
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              ll\ THE COURT OF COMHON PLEAS OF PHlLAOELPJllA

                                  CRIMINAL        TRIAL l)l\'ISION

COMMONWEALTII          er:   PENNSYLVA1'IJ1.                              CP-06-CR-0004008-2012

       v.                                                                 CP-06-CR-0004009-2012

AXEL 8/\RRE"l O


                                                                                                                        '        ·11.,    •..

                                                (JPINTON
                                                                                        ·,. .••   1
                                                                                                      ·,.             .r·
                                                                                                                      .,,,
                                                                                                                           •.v -. \..
                                                                                                                                   ..., e.
                                                                                                                                                ·Jnt'l•
Rose Marie DeF no-Nastasi. J.                                               l
                                                                                ··
                                                                                .   •        • •
                                                                                               •.•
                                                                                                       -· ' . - .. ~·f,..,·..• 1o•f ..P1'~
                                                                                                      ..-:   ,,   •          .:..~:




                                     PROCEDURAL          HISTORY

       On November 8.2013.         the Defendant was found guilty after a jury trial. presided over by

Honorable Rose Marie De+ino-Nastasi.          of three counts uf First Degree Murder, l 8 Pa.C.S. §

2502(a), as a Id .iny of me first degree: four counts of Attempted      Murder. 18 Pu.C.S. ~ 90 l , as a

felony of the fir:;t degree; and Possession    or an lnstrumcru   of Crime (PTC).                 18 Pa.C.S.                             * 907(b),
as a misdemeanor of the first degree.

        Followir.g a Death Penalty Hearing. on :'\ovembcr l 4.2013.         the Defendant                                   V\   as

sentenced to lih imprisonment       without the oossibility or parole for the first dcgre« murder of

Javier Orlandi; a consecutive lite sentence without the possibility      of parole tor the first degree

murder of Joshi a Suto: a consecutive     life sentence without the possibility of parole for the first

degree murder «f'Dante       Lugo: a consecutive sentence often (10) to twenty (20) years for the

attempted murd ~r ofA; ron Marrero: a cone urrent sentence of ten ( l 0) to twenty (20) years for

the attempted n: urdcr o.: Brandon Hernandez: a concurrent sentence         or ten            ( I 0) to rwcntv (20)

years fur the alt empted murder of Christian Nunez: a concurrent sentence of' ten ( 10) to twenty

(20) years for tt c attempted murder of Angel Rodriguez: and two and a half (2 ~'~) to Iivc { 5)
                                                                                                        Circulated 12/01/2015 02:38 PM




years for the Pl( con vie .iou. to nm concurrently.                        Notes of Testimony (N.T.) 1 I 114/l 3 at PP· 9-

10.

           On February 7,: O 14. Defendant Ii le J a PCRA to reinstate Appellate Rights Nunc Pro

Tune which was granted on April 22. 201-L

           On April 24. 20 4. a notice              or appeal      was filed.

            On August 25. '2014. Dcfcndants                  lT1.111sel     filed a Statement of Matters Complained     of on

appeal, pursuan: to an order of the court directing counsel to Jile a 1925(b) statement.

                                                                  FACTS

            On Janu iry 10. :~012. Defendant Axel Barrero opened fire on a car filled with seven

unarmed teenage boys who had come to the Defendant's Juniata Park home on the 4000 block of

Neilson Street t,J fistfig u one             or his stepsor      s. Benny 1 orres. N.T. 10/29/13 at 66:4--2:2. Aaron

Marrero ( age si.accn). Christian Nuner (agt· Iouneen). Brandon f Icrnandcz (age eighteen). Javier

Orlandi (age fo1111ce11). Joshua Soto (age fourteen}.                        Dante l ugo (age fourteen) and his brother,

Angel Rodriguez (age fifteen) were all occi pants of the vehicle and members ota teenage gang

which cal led ils::I f K ra:- y Ass t\.._)Ul;dK.t\ 13 ).1 N. l', 10/25/13 at 64 :7-25: 10/31/1 J al 32: 7-13.

 Benny Torres       \H\S    Christiaus       classmate and a member ofa rival gaug. Eric Torrcsdalc Boys

(ETB). N.T. 10.29/13             at 34:6-::!4:     1012-+113 1t 160:5-10.

            Aaron Marrero          was treated for a gunshot wound to the back of his neck and survived .

                                           ~ all died as a result of their injuries.
Joshua Sow, Javier Orl.indi, and Dante l.uuo                                 -       :"J.T. lil/29/13 at

 188:15-19.      2os.10-13.       n4:12-10.

            Aaron i\ larrero. Brandon Ilernande. .. :'\ ugcl Rodriguez. and Chri st ian Nunez tcsti ficd to

 the events leadi rg up tr the shooting. On the night or· the crime. the sev en boys drove to J1111iat3


 I
     Different Commc nwcalth vitnesses referred to Kf !3 as 111e~111ing K1~>it1g All Bitcb?, or l,rn,y Ass Boulz or Kick
As, Boulz. N.1.     l(   ·2..r13 at l::'6:7-2.?; 10'28.13   at 34:-t,25.
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Park. spray-painted KAB on a fence. and tock a photo in front of it. N.T. 10/25/13 at 153:6-15.

In the photo. the boys made a ··K' with their hands. ld. at pp. 156·57. Christian posted the photo

on F acebook. Tr c Defeudant's stepson. Benny. commented on the photo: =Nowadnys people just

don't know how to act.         {.s:·   Id. at 157:6-1:.;    10/:29/13 at43:l9-21,              82:13-19.        129:16-21.

Christian testific d that F.. S. stands for ··real xhit." id at 84:3-l l. The comment incited an

argument betwc m Christian and Benn) on laccbook. The two arranged to meet outside of the

Defendant's hone on Neilson Street 10 tistf ght. The 10\11 drove to the Defendant's                                   home. They

did not bring an r weap<.•m? with them. N.1. I 0/24/ l 3 al pp. l 33·3-L 10/25/l 3 at pp. 12-13.

             When the KAB arrived. they observed a male in                El   grey hooded sweatshirt. later identified

as the Defendant. stand.ng on the porch smoking a cigarette. N.T. I 0/15113                                at   172: 19-25;

 l 0/29/13 at 46:~ - l 4. Javier rolled down the window and said '"KAB:· Id. at ,17:3-6: l 0/24/13 at

 132: 19-24. The K.i\8 circled the block in their vehicle. When they returned, the Defendant was

 no longer outsic c. Aaron parked in an alley connecting Castor                        i\   venue and Neilson Street. /J. at

 48:8-14. Christian messaged Benny on Faccbook telling him to come outside: Benny replied that

 he already had c ornc outside. Id at -+8: l 5-2L Christian and Dante exited their vehicle and peeked

 around lhe corner at the Defendant's home, id. at 49:2-7: l 0/25/14 at l 60: 19-25. I\ minivan

 approached fror 1 the or positc end of the alley. Christian and Dante got back in their vehicle.

 N.T. 10/25/I-~ at p. 176 The boys prepared to leave. Aaron "as driving: Joshua sat in the front

 passenger" s sea : Dante sat behind Aaron: J,nt:cl sat to the riuht of Dante: Christian sat on
         -                                                  ~                    ._.                  I




 Angers lap: Javier sat to the right of Angel and Brandon sat behind Joshua. Id. at pp. 177- 78:

 l 0/29/ 14 at 5 U,-22.



 2
  I\ loose chain wa , found ir the backseat or their vehicle. N. l. I (.!'2-1 13 at I 1.3:5-20. Aaron Marrero test: lied that
 he used the chain hr his A.IV and thdL none of tlre t ovs intended to use it as a weapon. Id at 159:2-2..J.
                                                                                              Circulated 12/01/2015 02:38 PM




       Aaron Marrero ie stified that the van parked a tcw feet in front of their vehidc'.. N.'1.

l 0/24/13 at pp. 138-39. ·Nhih.: he was looking al the van "waiting Ior somebody to get out." he

saw the Defendant "con: ing out of the al leyway .' hi. at 138::!.1-25:            139: 1-l- l 7. lhe Defendant

approached Iron 1 the right side of their vehic le. Id at 140 '. l +21. The Defendant took

approximately tvvo step: towards their vehicle. "looked right in the front windshield," .. lifted up

his sweater, grabbed his gun, and just started shooting." Id at 141 :3-13: 142:2-<>~ 145: 17-24. The

Defendant did n:n say u vything. id. at ! 42: 13-14. Ile just started shooting at .. the from

windshield on tl.e bouo.n riuht-hand corner .. id            al   142: 10-12:   146:2-12. When the Defendant
                                '°

pulled out the gun. Aaron .. thought he wus roing to say leave. get out of here or something but

he started shoot ng .. ." Id     al   144:3-12:   J 4(d   1-23.

        Aaron te siificd that he drove away as soon :.1$ he heard the first shot. I le ..went straight

out [of] the alleyway bl t on an angle to go around the x au" and then "straight out" towards

Castor Avenue. Id. at l-14~13-24.        At no point did he try to run the Defendant over. Nor did he try

to drive in the direction where the Defendant was standing off to the right of their vehicle. Id.

The Defendant 1ever moved .. from the spot where be was when he began firing." id at J 72:5-8.

Aaron testified 'hat he continued to hear shots as he was pulling away. Id. at l 48: 11-13. He heard

glass breaking s nd the other males in the car screaming. ) c!ling. and er) ing, Id at              pr.   14 7-48. Ile

heard approximately ni re ( 9) or ten ( 10) shots in total. Id at 149: l lJ-::!.'.2. Aaron further testified

that just before   1e   drove out of the nllcyway. the Defendant            shot him in the back of his neck. Id

at pp. 148-49.

        Brander Hernandez testified that aficr they parked in the alleyway. he got out of their

vehicle and walked to L te sidewalk at Neilson Street. N. I. I 0/25/13 at pp. 18-20. The van pulled

up. He thought hen: were people in the var and that it ,,.,as some sort of setup. so he got back in



                                                                                                                     4
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their vehicle. The Defendant approached the r vehicle. took approximmely two ('.?.) to three (3)

steps. reached for his gua. and started shoaling.             Id <il p. 22: 47:2-6. ThL: Defendant pointed his

gun at the right t ide oft icir vehicle, into the part of the car where they were all seated. Id. at p.

25. The Defendr nt shot from the front of die ir vehicle to the back. !J. at 14:22-2-L Brandon

stated that once .he Defendant pulled out his gun. Aaron tried to drive off. Since the van was

blocking     their vehicle Crom leaving. Aaron had            to   dri vc around the van to get out of the

alleyway. JJ at pp. 25-::6. None otihc bovs said anything                   to the Dclendam. Id at 36:19-14.

Aaron never tric cl to rur the Defendant           0Ye1   or drive at him. Id at ><>: \ 8-24. Brandon heard the

                      '-'           -
sound of broker ulass and gunshots as thev. drove out of the al levw
                                                                  . av. Id at 27:4-9:   ,;
                                                                                                             49: 16-18. I le

knew that the Defendant            continued to shoot into their vehicle as Lhey drove away because he saw

 Aaron get shot in the br.ck ofhis neck. Id at 27:6-1-+.

            Angel Rodriguez        testified that he saw the Defendant come our from the center of the

 alleyway, pull a gun frc m his waist. point it towards their vehicle. and shoot into the front

 windshield on     tl\!     passc ngcrs side. \.T I Oi28!13 at pp. 5-7: J.l.-15.             Everyone in their vehicle

 ducked. Id at 1 U2-15            At no point did Aaon tr) to drive the car in the direction of the

 Defendant. Id , t 16:4-6.         As soon as shots v.ere tired, Aaron drove Lo wards Castor A venue. Id. at

 17:3-15.    Angel continu ed to hear shots as they drove awav. Id While in the alleyway. he never

 heard the Defendant sa:1 anything.           Id. at 18 6-9. None of the boys said anything to the Defendant.

 Id at 18:19-11.     All oft re windows were u~· in their vehicle.             Id at 18: 12-13.

            /\t approximate y 10:JOpm.         Philadelphia        Police Officer Donycll Thomas was dispatched

 to Saine Christopher's         Hospital in reference to a report of multiple gunshot victims.               ?\:T.

 10/24/13     at 90: 7-25. 91: 1-11.      /\ radio call lt,r multiple     gunshots   near Castor Avenue and

 Luzerne Street 'vas contemporaneously              issi ed. N.1·.     10/25/i 3 at i28:2-16.      Officer Thomas



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testified   that when he arrived at the front cnt ·,mce        or the   emergency room. he observed a blue

Toyota Corolla covered .n bullet strikes and filled with "pools of blood." id. at 90: 15-'25. Officer

Timothy Miller :,imilar}~,        testified that the ve hicle had "multiple gunshot holes in the back

window, passenger's sic e ofthe vehicle and front window. a large amount                    or blood     in the

backseat and some blood in the front scat." ,'d at 130:3-13.

            Philadelphia   Police Officer James Manin testified          that at approximately    l 0:30pm, he

received a radio call for a report of gunshots in the area of Castor Avenue and Luzerne Street.

N.T. 10/24/13       a 252:6-14.      When he arrived at the scene. he smelled gunpowder in the alleyway.

Id. at pp. 253-SL. Office r Martin left the scene and drove to Saint Christopher's l Iospital. Once

there, he spoke ·.vith A,ff011 Marrero who str tcd that "he had driven tu that area of Castor and

Luzerne because one         or his   friends was hav .ng a problem with a male know n as Benny Torres

and that somebc dy shot at then) and he lclt somethinj;             and drove ,rnay ... lei. at pp. :258~59.

            Philadelohia   Po ice Officer Timothy        Stephan testified that when he arrived at the crime

scene, he observed mul.iplc spent shell casings just inside of the alleyway                 in the rear or 4000

Neilson Street. \LT. I 0,28/13          at 95: 19-25. 1~/hilc securing the scene, he received a radio call for

a person with a gun inside ofthe property a: 4030 Neilson Street. Once at that location. Officer

Stephan was mr r by a Hispanic female. Ma ·ia Esquilin.                 and several juvenile children.     including

Benny Torres. 1./. at 96 l 0- l 9.

            Officer "srian Slark     or the   Phi lade Ip 11a Crime Scene Unit tcsti ficd that two (2) copper

jacket fragment, and 1e1 ( 10) 9 millimeter            Luger fired cartridge casings (FCC) were collected

from the rear driveway of 15 l l East Luzerr e Street. >J.T. J0/28/13 at 148:10-25:                 151:3-14.




                                                                                                                       6
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One (I) Winchester 9 m] J lirncier Luger FCC was col leered near the garage door of 4032 Neilson

Street. approxim nely seven (7) feet Irorn the Defendant 's garage. Id at pp. 13 7-38: 151 :3-14:

218:20-25.

       During itspectioi orthe vehicle, one (1) 9 millimeter Luger FCC was recovered from the

front passenger 'Cat. t\.~- 10/28113 at 153:11)-14.     166:19-23:   101:H)/13 al 57:7-12.    Two (2)

copper jacket th: grnents were recovered    frorn under the front passenger seat. N.T. I 0/28114 at

195 :22-25, 196: -10. 13oth fragments    had a x hite powder-like substance attached, consistent

with having con- e in contact with glass. N.T. 1 OiJ0/13 at 56: 19-25. 57:7-'J.5: 58: 1-13.

        Officer ~tark testified to the bullet holes on the vehicle. KT. 10/28113 at pp. 187-201.

The rear windshield anc backseat windows Jf the vehicle were tinted. id. at 153:5-14.              The rest of

the vehicle was not. Id The vehicle had six (6) bullet holes: one in the hood: one in the lower

corner of the frcnt windshield   on the passenger's     side: two in the rear windshield: one in the

right backseat \\ indow: and one in the right backseat vent window. The hole in the hood of the

vehicle was angled tow.ird the steering wheel, id at 153: 18-25.        Ihis indicated     that the shot was

fired from the right side olthe vehicle. id The hole in the Iront w indshield corresponded to a

hole in the dashboard. H at pp. l 71 • 72. The hole in the lower right corner       or the   backseat

window matched a hole near the shoulder       a 'ca of the from passenger     seal. Id at pp. 178- 79.

Multiple strike marks were observed on the right side of the vehicle. id at p. 193.

        Police C Ilicer Norman De Fields from the Firearms Identification          Unit of the Philadelphia

Police Dcpartm ent testified to the evidence recovered       from the bodies. One ( l) bullet core and

two (2) bullet jz ckets with while powder were recovered from Dante Luuo ·s brain. The white

powder was crushed glass. ~.T 10/30/13        al   62:5-25. 63:~0-25. 64:1-22. lwo (2) full metal

jacket bullets wuh white powder. blood, and tissue \\ ere recox ered from Joshua Soto· s right



                                                                                                               7
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chest and left hu ncrus respectively.          Id. al 6~: 17-25. 66: 1- I 3. 6 7: 1-6. One ( 1) bullet jacket was

recovered from: avier Orlandi. s right back. and one ( l) bullet core with white powder, blood and

tissue was recov ered from his left anterior neck. Id at 68: l 1-25, 69: 1-~5. 70: 1-10.

        The Medical Examiner, Dr. Edwin Lieberman,                  testified to the findings     of the postmortem

examinations     . Joshua Soto died of a gunsho wound to the right side of his back. N.T. 10/29/13

at 207:4-10. Based on the trajectory of the bullet, the business end of the gun would have been

slightly heh ind l.im. off    TO   the right side, and aimed slightly down. Id. at 192: 17-25. /\ second

gunshot wound o his humerus was observed, Id at 194:24-25.                    195:2-9 . Javier Orlandi died as a

result of a gunsl .ot wound        10   his. back. Id at 221 :25. :222:2. The business end of the gun would

have been slightly behind him and off to the right side. Id at 117:2-11.               Dante Lugo died as a

result of a gunshot wou rd to his head. Id al 234:21-22.             The business end of the gun would have

been behind him, aimec forward. so that the bullet entered the back of his head and passed in a

forward directic n. Id. al 233: 15-22.

            Detective Sean .vlellon of the Philadelphia Police Homicide Unit. fugitive Squad testified

that on January 11. 201 ), he received an arrest warrant for the Defendant. N.T. l 0/30113                   at


94:17-25.     The arrest wz rrant culminated        in lhe development     otsome information that the

 Defendant was staving 1t the Knights Inn ir Trev ose. Pennsylvania."                Id at 92: 17-25. Detective.

 Mellon and United Stares Marshalls            went t« the hotel. They knocked and announced their

 presence. The Lefendaut and a Hispanic              female looked out the window of their room.          Id at pp.

95-96. Detective      Mello   1   entered the room. '\tier a brief struggle. the Defendant was taken into

custody. The Hispanic         female.     later identif :xi as Carol Diaz. was also taken into custody. Id.

            The Defendant presented a justification         defense. The complaining       \A   itncsscs conceded

 that problems b ~tween · he KAB and ETl3 sartcd in the summer of 201 I. N .T. l 0/}9/13 ut pp.
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34-35. Angel and Christan testified that in June 201 l, their friend Nico was jumped by Benny.

his cousin J.R., s nd other members of the ETl3. N.T. 10/25(13 at pp. 161-7 L 10/29/13                        al pp. 34-

42. On the day of that incident. Nico's mother drove some of the KJ\8 to the Dcfcndants home.'

When they arrived, J.R. and other members .if the ETB were standing outside. lhc K/\B got out

of their vehicle r nd the boys started to fistfight. N.T. 1 ll/25/13 at 166: 13-16.               Christian and Angel

testified that the fight erded when Maria Esquilin. the Defendant's wife and Benny's                         mother,

came out of the .iouse s-vinging        a 2-by-4. hi at pp. 40-41:       10/25i 13 at 168:3-15.

         The Def ndant's wife testified on behalf of the defense. Ms. Esquilin testified that on the

day of the June :!O 11 fight, she beard her neghbor scream her name. N.T. I Oi3 l/l3 at 41 :6-15.

When she looke j outside towards Lycoming Street, she saw .T. R. surrounded                        by a group of

people trying to tight hi n. There were .. more than twenty kids and adults." Id at 45:2-J. Ms.

Esquilin yelled for .I.R.    :Q   run. She testified. "When l seen him [ .I.R.        I run.    he passed by me. 1 ran

right behind hin. and all I sec was ali of these kids on top of al! of these porches lry1ing to hit my

nephew (.1.R.] and one «Imy sons [Benny] was outside." kl. at 42:14<!0.                        The KAB followed J.R.

lo   Ms. Esquilins porch The boys continued to tight. Joshua hit Benny. Id at pp. 42-43: 84-85.

Christian     broke one of their windows. Id. at pp. 46-47. Ms. Esquilin                  testified: ·'J went up the

steps. I got on die porer ... l grab the 2-by-4 and l started swingi ng <ll everybody on the porch ..

." Id at 45: 12-1 S. The Defendant "came ou and he tried to separate [the fight} ... he pushed the

kids out from my porch and that is wnen rh« cops came." kl. at 47:12-L5.

            Ms. Esq rilin further testified that she heard that on December 27. 2Ul L the KAB "were

on Frie and T<wes<lale showing a gun, that they wanted to shoot m> son I Benny]." Id. al 53:2-5.

This prompted Ivls. Esquilin        to call Bennvs school. Id. at pp.        J   26-27.

; Christian testificc that .losl ua. Angel, and he drove to the Defeudants home N.T. 10,'29 13 at 37:3· 1 l. 1\ngel
testified that Dante. Joshua. Javier, Christian. Nico, Joseph and he d:·m·l' lo the Defendant's home, N.'}. 10125/13   at
 162:3-25.                                                   .

                                                                                                                            9
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           Ihc Defendant      wok the stand at trial He testi tied about multiple incidents in ml ving

Benny and the l</\B. Or the day of the June 2011                      light. the Defendant. his wife. and other family

members were s tting or their porch when a neighbor yelled that J.R. was being chased by a

group of people. N.T. 1:/1113               at 58:11-12.       The Defendant testified; "[Bleiwccn 10 and 12 kids ..

. four ( 4) older ,1 'omen ... [and] a couple ol Ier males" "started overcrowding the front of our

house. to the ste   )S.   neig.ibors        porches. next-door ncighhors porch. jumping on their porch,

trying to get intc our     ho isc to hit the kids ar d things like that." Id. at 59:7-24. The Defendant

went   into their house     ,:111:.1   told his   stepchildren to stay inside. Id at 60:3-9. When he came back

outside, Ms. Esc uilin hz d "a 2-by-4 and started swinging." Id at 60: I 0-19. The tight ended as

the police arrived. Id at 60:20-24.

           The Defendant testified that around .Iallowccn of 20 l l . he believed that the KAB shot

their house with paintball guns. Id. at 64:5-14. After that incident, \!ls. Esquilin went to Benny's

school to compl iin about Christian Nunez .. 'd. at 64: 19-24. For about a about a week-and-a-half

to two weeks, t~ e Deter dant or his \\ ifc had to go every day to pick Benny up from school. id. at

65:4-14.

           The Def endant testified that in Nove mher or December ol 20 I I: .. Benny told [Ms.

Esquilin] that the: was trying              LO    come   LO   Eric and Torresdale station where you get off the train

at and the kids was trying to wait for him there. One of his friends and him seen one with a gun.

a kid was trying to brandish a gun out to let them know they had guns and stuff like that." Id at

66:6-20.

           The De 'cndant testified about the Innuary 10. 201:2 shooting. At approximately l Opm,

the Defendant v-as smo cing a cigarette on his porch. Id                     al   pp. 70-71. IIe observed a vehicle

drive down Nd son Street towards Luzerne Street. The vehicle slowed clown when it reached his



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home. The back windows of the vehicle were tinted. id. at 73:25.                 74:2-5. The Defendant

assumed the pcri:on was a delivery driver or looking for parking. Id at pp. 71-72. The Defendant

sat down in a chair on    tt cir   porch. The vchit le drove by his house and slowed down again. Id at

73:9-22. The Defendant testified: ·'After it goes by. probably like two tu three houses down. the

front window gels roller down and sorneboc.y says something hut l didn't get to hear exactly

what was said because 1 really wasn't paying no mind at the car." Id at 73: 15-22. The Defendant

could not see if there were reorle in the vehicle, ld. at 74:6-!3.

        The Defendant testified: ··1 finished my cigarette. 1 go back in the house, close the door.

lock the <loor because it is late at night. as usual. l sit there. start watching TV and probably

about another three to live minutes. Benny tomes down the steps ...                   he looks out the window

and he is on the phone \,;ith somebody. l don't know who he was talking to and then after that

Benny leaves ... and then after that, [my stepson! Dominic comes down ... He looks out. I le

opens the front door but he doesn't open the screen door to go outside to the porch ... and he

just looks out the scrcer door and says these guys are coming             >-    I sec these guys me coming to

get Benny again." id at 74:19-25,         75:2-14.   After talking to Dominic. the Defendant .. put two and

two together that is wh: the car was driving by so slowly going around the block ." Id at 75:2 l-

25; pp. 76-77. I he Defendant told Dominic to tell Ms. Esquilin. I le then went to gel his stepson,

Daniel. who wa : outside in the alley behind their home. lei. at p. 76-79. Daniel went inside.

        The Def endant walked "two or three houses down" the alley to borrow a gun from his

friend. Droop. Ji. at pp. 79-80 .:' [TTe] got the gun off Droop and then went back in the house." Id.

at 81 :3- 7. The l iefendant   testi tied that the gun he borrowed was a black XD Spri ngficld compact

9 millimeter. Id at l l 9:6-'.24. The Defendant testified:      ··My wife made it down to the basement.

She is scrcamin ; to Daniel and all ofus tha: they arc try111g       to        kill my son. they arc trying to kill



                                                                                                                      Il
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my son and 1 told her. I said calm clown ....       am going   to   go around and sec what's going on."

Id at 81:9-15.

        The Dcfc ndant testified: "I started v, rlking up the driveway. When I walked up the

driveway. as socn as I g~t to the corner of my driveway. l didnt notice what was going on and as

soon as J turned, the car was just directly right there and my first instinct. my reaction          my

intentions is from everyiody telling me the car is in the front of the house and I hav e no

recollection     that the car was in the back of the house, coming toward the back olrny driveway.

So my first instiict, l was in shock. knowing the car was there because I had no idea what was

going on, and my first reaction was to start shooting al the car." Id at 81:5-15.        The Defendant

repeatedly testif eel that his "first instinct wr s to start shooting nt the car." Id at 174: 17-22:

176: 15-20. In a ormal statement      to   police on January 12, '.Wl 2- the Defendant stated: ··As soon

as I turned the a lcyway they was right there in a car. So my first reaction was to start shooting."

Commonwealth's (CW; Exhibit, 11.

         The Defendant conceded on cross-examination that the young males in the car did not

produce a gun. l.nifc, or say anything to the Defendant        Id at pp. l 7l-T2. Irrespective of this, the

Defendant immediately       started shooting into the hood and lower front passenger side        or their
vehicle. Id at 1 ''2: I 7-2,l. He also conceded    that when he shot in Lo their vehicle. he saw Joshua in

the front passcn gcr seat Id at 178:'.2-5.    On direct examination. defense counsel asked: "When

you saw that car. '"' hy did you pull it out'? ... I he Defendant responded: "Because I was fearful of

not knowing wl at was going on or what their intention was of corning around to the back of my

house. I didn't 1 now what was going on. When I seen the car. there was so many ofthem in

there, I didn't know wh it they was going to do." Id at 84:9-16.          "/\s soon as I seen the car, I




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pulled [the gun] out and directly began lo shoot at the car and everything happened in a span        or
probably nu more than eight seconds." Id at 84:22-25.

       As their vehicleousscd the Defendar.t and drove out of the alleyway. the Defendant

continued to shoot into their vehicle as the Defendant was "backing up ... id. at 86:3-12. During

cross-examination   by th: Commonwealth.         the Defendant testified:

       Q. Sir, d» you have any idea bow Mr, Lugo in the rem seat behind the driver was

       shot in the back Jf the head?

       J\. No.

       Q. Do ye u have any idea how Jade 1)rlandi was shot in the back w bile seated in

       the backseat. sir"

       A. As I t card from the testimony. it was crowded in the backseat.

       Q. Sir, y )U were firing into the backseat as the car was fleeing, werent you. sir?

        A. Yes.

        Q. Yes, :,-ou were shooting at the car as it was fleeing, weren't you. sir?

        A. Yes.

Id. atpp.194-9:,.

        The Def mdant recounted that after the shooting, he went back in the house and Droop

took the gun off of him and reloaded it. The Defendant then went upstairs to grab his money and

narcotics. I le came bacl: down, jumped in his sister-in-law' s car, and went to her house. He

remained there .or a little while, and then letl to go lo the Knights Inn where he remained until

his arrest. CW Exhibit, 23.

        The Detendants wile testified abou. the shooting. Ms. Esquilin testified that Dominic

told her that sot ie kids were there   10   fight Ecnny. N.T. I 0/~ 1 /13 at 60:2 !-25. When she looked
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         outside. she saw a black car in front         or their house with the "window        down \\ ith a gun out." hi. at

         61 :8-12. Ms. Esquilin Ii rthcr testified that there was 3 whole hunch of kids on the corner of her

         house. Id. at 61: 18-22. ~ he started scream ing for Dominic and Benny not to go outside. She

         heard shots. She called      '! l   l and told them.·· lhcy are going to shoot my kids. They arc going to

         shoot my kids. l lurry up. They arc gl,i ng to d 11 my kids." Id at 63 :8-14.

                  Ms. Esquilin screamed for the lkkndant                 who was in the basement of their home. She

         testified that the Defendant exited their home Irorn the basement door with a black gun. id at pp.

         64-65. Ms. Esqrilin testified that she called 911 before rile Defendant went outside." id. at p. 65.

         The Defendant then retuned to their house and told her that he would be right back. The

         Defendant ncve: returned that evening. Id at pp. 66-67. Ms. 1-'.squilfn testified that the police

         came to their house ten '.10) minutes after tle Defendant left. id at 67:9-12.

                  Carol Diaz testified on behalf of the defense. Ms. Diaz stated that she lives on Castor

         Avenue behind I he Defe-ndants home. :'J.T. I 0/30/J 3 at pp. l 70-72. ln a statement to police. Ms.

         Diaz stated that the Defendant          is her boyfriend, hut that he is married. Id. at 180: l 2-21. The

         Defendant and she wou' d meet on her days off and get a room at a motel. Id at 20-23. On

         January 11, 20 I ), the Defendant called Ms. Dia? and asked if she could bring him food and

         cigarettes. id. at 174:6-'. 8. Ms. Diaz took a bus to the Defendant. She arrived al the Knights Inn

         no more than fifteen mi .iutcs before the police arrived. Id. at 176:8-20. Ms. Diaz testified that she

         learned about the shooting on the news. hi.             ·lt   186: 19-25. However. in a statement to police, Ms.

         Diaz stated that the Defendant told her ··1hai something happened at the corner of the house and

         it involved a fig rt between his kids and sorr.c other kids. It was SLHnc kind              or fighl over
         Facebook." Id ut 186: I 3-16.


         ~ The 911 transcrip.s reveal hat Ms. Esquilin culled 91 I approximate ly twenty-seven (27 J minutes after the first call
         co police dispatch reporting .~unshots. Id at pp. 176-~·,.

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       Detective Jeffrey Burke of the Philadelphia            Police Department        testified that the

Defendant wast rough! nto the homicide ur it by Detective Md Ion and the fugitive taskforce.

N.T. 10/30/13 at 106:J l-15.          The Defendant    wax advised of his Miranda        rights then gave a formal

statement. Id. at pp. l08-27. The Defendant            confessed that he shot and killed Javier Orlandi,

Joshua Soro, and Dante Lugo. Id at pp. 118-19.

                                                      ~l\ALYSJS

                                                        Issue I

        In his Rt. le 1925(b) statement. the Defendant            contends that there was insufficient

evidence as a mutter     or   aw Lo convict him clFirst Degree Murder because there was no

evidence that he had the specific premeditated            intent tu kill. The Defendant i~ essentially

asserting that the ComJT on weal th did not di sprove beyond a reasonable doubt his justi fication

defense.

        "There i.: suffici em evidence          to sustain a conviction when the evidence admitted at trial,

and all reasonable inferences drawn therefrr m .. viewed in the light most lavorable to the

Commonwealth as verdict-winner,               are sufficient to enable the fact-finder to conclude that the

Commonwealth cstablis hcd all of the clements of the offense beyond a reasonable doubt." Com.

v, Morales, 91 /i.Jd 80. 87 (Pa. 2014) (citing Cont.           1·.•   \1ctrkmc111. 916 /\.2d 586. 597 (Po. 2007)).

The Commonwculth         1111: y   sustain   its burden of proof "by means o lw holly circumstantial

evidence." Morales, 91 A.3d al 87.

        To susta u a conviction for first-degree          murder, the Commonwealth           must prove beyond a

reasonable doul   t   that: (I) a human being was unlawfully killed; (2) the defendant              was

responsible for the killing: and (3) the defendant acted with malice and a specific intent Lo kill.

Morales, 91 A.: d at 88: 18 Pa.CS. ~ 2502(a). The j udicially de, eloped phrase "specific intent"



                                                                                                                     15
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to kill may be used interchangeably               with the statutory language "willful. deliberate. and

premeditated .. tc ex press the same concept. ,:. '0111.           ,,_   Simpson, 754 J\.2d l 264, 1269 (Pa. 2000 J.

The requirement         of premeditation        is met whenever there is a conscious               purpose to bring about

death. Com. r. C 'Seara. 352 A.2d 30 (Pa. l 076). ln deciding whether                            to   i11!1.:r specific intent, the

jury should consider all relevant evidence,               including the words and conduct ot' the defendant and

the attending cir :um star ces. ( 'um. v Ash. J()4 A.2d -1- 79 { Pa. 1978). Circumstantial                            evidence can

itself be sufficieit to prr-vc any clement or all of the clements of first-degree                              murder. Cam. v.

Chamberlain. 3(1 A.3d 381. 394 (Pa.2011                  ). Thus. the requisite specific intent to kill can be

established through circ rmstantial evidence such as the use                     or a deadly weapon                on a vital part of

the victim's body. Cum.            I'.   Diamond, 83 A.3:1 I 19. 126 (Pa. 2013 ): Com.                  I'.   Rega. 933 J\.2d 997.

1009 (Pa. 2007) See N.             r.    11/5/13 at 193: 11-17.

         Sclf-defe nse or defense of others is r.n affirmative defense to a charge of first-degree

murder. Com.      l'.   Rivero. 983 J\.2d 1211.         12:'. I ( Pa. 2009}: Com.    1' ..   \'i111111ons.     4 75 A2d 1310,

1313 (Pa. 1984)          A claim olself-de lense or defense of others (justification)                         requires evidence

establishing    three elements:           .. (a) [that the defendant] reasonably believed that be [or another] was

in imminent danger of death or serious bodi.y injury and that it was necessary to use deadly force

against the victi       11   to prevent such harm: (b) th:.11 the defendant         \\US      free from fault in provoking

the difficulty which culminated in the slayir g: and (c) that the [defendant! did not violate any

duty to retreat." Com. r. Mouuon. 53 A.3d 738, 740 (Pu 2012).

         "Although the d rfend ant has no burden to prove self-defense ...                              before the defense is

properly in issue, there ·nust be some evidence.                  from whatever source,            Lo    justify such a finding.

Once the question is properly raised. the burden is upon the Cornrnouwealth Lo prove beyond a

reasonable     doubt that the defendant was not acring in [justifiable]                      self-defense"        or defense of



                                                                                                                                      16
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others. Mouzon, 53 A.3cl al 740 (citing Cum r. Black. J 76 A.2d 627, 630 (Pa. 1977 )). Deadly

force is defined .is "[Ijorce which. under the circumstances                 in which it is used. is readily capable

of causing death or scric us bodily injury." 13 Pa.C.S. § 50 l.

           The Con monwcalth sustains its burden of negation if it proves any of the following

beyond a reason ible doubt: .. that The l defendant     J   was not free from fault in provoking or

continuing the d fficulr; which resulted in the slaying: that the [defendant]                 <lid not reasonably

believe that [he] [or another] was in imminent danger of death or great bodily harm. and that it

was necessary tc kill in order to save l him [self     lor others J therefrom:          or that the [ defendant J

violated a duty    l)   retrea or avoid The danger."   :\1011:::011.   53 /\ . Jd al 740-4 I ( citing Com. r. Bums,

416 A.2d 506. 5 )7 ( Pa. 1980) ). The Commc nwcalth need only disprove                     one of the elements in

order to defeat a claim cf self-defense or dc.cnsc of others. Com. , .. Met'lain, 58 7 l\.2d 798. 804

(Pa. Super.), app. denied, 598 ;\.2d 993 (Pa. 1991).

           Although the Commonwealth is required to disprove a claim                    or self-defense.   ··a jury is

not required to l elieve the testimony of the Icfcndant who raises the claim." Com:v.                      Miller, 634

A2d 614. 617 ()a. Super. 1993), app. denied .. 646 A.2d I l 77 (Pa. 1994 ). Moreover, where there

is evidence fron I which a jury can reasonably infer malice. the Commonwealth has met its

burden of proving bcyo id a reasonable doubt that the defendant did not act in self-defense or

defense of others.      Miltc.: 6.34 A2d at 617 (tiling Com.           1·   Ilinchcliit«. 388 A.2<l I 068, I 071 (Pa.

l 978)).

           It is und spuied hat the Defendant s 101 and killed Joshua Soto. Javier Orlandi, and Dante

Lugo who wen: unarmed and retreating.           One could not Iind that the Defendant reasonably

believed that he or his f'arnily were in danger or imminent death or serious bodily injury from the

victims. The Defendant was most certainly ar fault for escalating the situation to one where he



                                                                                                                         17
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then fired a weapon. TIT s was a potential fistfight among unarmed teenagers.                           This adult

Defendant introc.uced     a weapon into a tcena;e dispute             instead of defraying it, or at the least,

keeping his family and l imsel r in his home and calling the police. Finally. not only did thi~

Defendant tail le retreat. but left his dwelling tu purposefully advance on the victims with a

deadly weapon in hand. Aaron Marrero, Christian Nunez. Brandon                            J lernandcz.    and Angel

Rodriguez repeatedly testified that as soon as the Defendant saw their, chicle, he pulled the gun

from his waistba id and ; tarted shooting. The y also testified that none                     or them    brought a weapon

to the fight: that Aaron never drove towards he Defendant: and that Aaron never tried to run the

Defendant over.

        Assuming arguendo that the Defenda               1t   believed his family and he were in danger. the

evidence was sufficient tJ support a finding that the Defendant was the initial aggressor. The

Defendant obtained a loaded XD Springfield compact 9 millimeter front his friend, Droop. His

front door was lo .kcd, Hts backdoor was sec .ired. I le did               11111   call 9 l l. N. T. 11 / [ /J 3   al pp.   155-

57. AH the evide rce including the Defendam 's statement show that the Defendant walked down

the alley behind r is home, pulled a loaded gun from his waistband, aimed it at a car filled with

young males. and tired m ultiplc rounds. Id             ai    119:25, 120: l-24; 172:20-24.            178:2-5.

        There was ample evidence to disprove the Defendanis claim that he was acting in self

defense or defens ! of his family. The Defendant testified: "As soon as they seen me, they tried to

take off" N.T. l 1/1/13    at J 7:1: 18-25. The Defendant continued to shoot into their vehicle as they

fled. Id. at 180:23-25, . 18J:I9-23.   195:5-10:    .    J0/30/J3    al   86:3-7: Com.        1·   Bullock: 948 i\.2d 818.

824 (Pa. Super. 2tl08) (e, idcnce sufficient to disprove self-defense where defendant shot victim

while victim was running away): Com. ,.            }'a,;i~[T     690 /\.2d 260, 264-65 (Pa. Super. l <>97)

(evidence sufficient to di: prove self-defense where defendant was near his car and could have



                                                                                                                                   18
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retreated in complete safety rather than shoot victim in the back as victim was running away).

The Defendant ;: dmittcc that he saw Joshua in the front passenger seat as he shot into their

vehicle. Id at 1: 8:2·5. Aaron was shot in th: back of his neck. The j\·fE concluded that the

business end or· he Dclendants            gun would rave been slightly behind Joshua. Javier. and Dante

when they were shot. N.'!'. 10!29!13 at pp. I n-'.234. The ballistics evidence, crime scene

analysis, and fin lings of the medical examir.er are consistent with the Defendant" s statement and

the testimony at trial. Tlcrefore, the Defendants argument is without merit.

                                                        Issue II

            The Defendant a lcges three instances ofprosecutorial           misconduct. A prosecutor's

comments do no amount to reversible error unless the "unavoidable effect                 or such   comments

would be to prejudice the jury. forming in th eir minds fixed bias and hostility            toward the

defendant so that they cc uld not weigh the evidence objccti vcly and render a true verdict."

Chamberlain, 30 A.3d at 408.: See Com v. Chester. 587 A.2d 1367. 1378 (P:i. 1991) (holding

that the defendant was not entitled 10 a new i.ial because certain remarks made by the prosecutor

"were not a deliberate        attempt to destroy the objectivity of I he fact finder. but merely

summarized the E vidcncc presented at tria] with the oratorical flair permitted during argument"}.

            The Defendant asserts that "the Comrnonwcalths closing- argument so inflamed the jury

that they could not rende. · a fai r verdict where the Com monwea Ith· s attorney gave his personal

opinion with respect to tl e guilt of the Defendant by calling him a liar ." There is no evidence in

the trial record th u the District Attorney explicitly         referred to the Defendant as a liar. The

relevant portion     or the Commonwealth          's closing concerned the contradictory testimony of Maria

Esquilin.     N.T. 10,31113    al   pp. 6L 141.   Ms. Esquilin testified   that when she looked outside just

before the shootir g, she saw a black car in th nt          or their   house with a gun out the window. N.T.



                                                                                                               19
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10/31/13     at   61 :8-12. In her statement to police. Ms. Esquilin stated that when she looked outside.

she did not see anyone. 'd. ar 141 :3- l 0. The Commonwealth argued in closing:

           "Barreto gets up there and says that didn't go so well for my wife. J watched it. I

           sat here z nd J watched it. So when I take the stand, I better be a little more

           reasonable when J try to pull the wor l over people's eyes. Absurd. absolutely

           absurd.     They are lying about guns. prior guns. It is an attempt to take your eye off

           the ball. Let's tal , about thm. Let· st; JI,; about an unreasonable            belief' in "lclf-

           defense."     1\1.T. 1 c/5113 at 116:2-l-25,     l i7:2-12.

The trial court addressed this issue in camera. Id a: pp.163-65. furthermore. Pennsylvania courts

have refused to a.vard a new trial under similar circumstances.                  ( ·om. ,·. Curpenta. 515 A.2d 531.

536 (Pa. 1986) (denying relier where the prosecutor referred lo the defendant as a "murderer"

who "took the stand and tied"): ( 'oin.          "·   Jud, '.)78 i\.2d IO 15 (Pa. Super. 2009) (prosecutor's

assertion that defendant         lied did not warrant mistrial):         see Cum. r. Hanible, 30 A..1d 426 (Pa.

2011).

           The Defendant next claims "the Commonwealth improperly shifted the burden                            or proof
the [sic] Defendant when he commented un the Dcfcndunts failure to call certain witnesses to

trial."   See N.T. l l /5/l} a 129:9-25.        130: 1-2. Comprehensive         opening and dosing instructions

considered in coniunci ior with the maxim th, 1 "'the Iav, presumes the jury wi 11 tollow the

instructions of the court" neutralize any potcr tial for prejudice. Rcg«. 9]3 A.2d al IO 16: Com. r.

Brown, 786 A .2d 961, 971 (Pa.2001 ). The ju ·y was thoroughly                     instructed on the relevant lav

and the Common-vealth            s burden    or proof.    N .T. I 0:24/ 13 at pp. 11-26:    I l ;5., 1 3 at 178:6-15.   T!tc

trial court fully ar d correctly charged the jury alter both sides closed.                 Id. at pp. 173-~32.

In an abundance c r cautir n, the trial court explicitl'. addressed this issue:



                                                                                                                           20
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        The Cot rt: "You heard some argurr cnt by Mr. Conroy regarding               ~1   witness.

        Benny Torres, corumenting on him not testifying in this case. The burden is

        always   0.1   the Ccmmonwcahh .. and the Defense, you heard me say over and over

        again. ha i no burden to present any evidence. in the case .. .' id. at 2:28: 1- I 2.

        Any possible prejudice that may have arisen in the case was cured by the trial courts

instructions. Simrson, 7:;4 A2cl    al    1272. The Dcfcndants .. failure to object to the instruction

indicated his sati sfacrion with the instruction." Morris. 5 I 9 J\.2d   [It   378. Moreover, even if the

statements were .mproper. they did not have the unavoidable effect of prejudicing the jury.

forming in their I uinds a fixed bias and hosril ity toward the Defendant. Chamberlain. 30 A.3d at

408. Thus, this issue fails.

        Defendant lastly nsscrts the Commonwealth "mis-characterized              [sic] evidence when he

said that the Defe ndant s.rid that they deserved to be bul!ieu:· A review of the trial record fails ro

support this conte ntion. Counsel may bl'. referring tu testimony evoked on cross-examination of

the Defendant's wife. Specifically. that she admitted to hearing the Defendant say. "They want to

act like men. I arr going o treat them like rnc n." N.T. I 0/31/13      at 186:~-I 0. The Commonwealth

was referring to the Dcfe idants statement in his closing. in which he argued: .. Now. the

Government is gc.. ing to say to you then he executed these young men. I le intentionally shot and

tried to kill each «ne oftl.cse kids and that was his intent. lt was premeditated und that is what he

wanted to do and he was going      to    treat them as men. that comment that he seized on to talk.

about whatever that mcais .. :· N.T. I J/5/iJ at pp. 52-53. The Commonwealth was merely

reiterating the De .endant s own statement ,.., nh oratorical flair in his argument. Therefore. the

Defcndarus c la int of prosccutnrial misconduct Cai ls.




                                                                                                               ?. I
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                                         co~,'CLUSION

Based on the foregoing,   he judgment ol sentence of the trial court should be affirmed.




                                                     Rdse Marie DeFino-:\Jasta~i.   J.




                                                                                                  22
