J-S10034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANGELO MALDONADO                           :
                                               :
                        Appellant              :   No. 1659 EDA 2017

              Appeal from the Judgment of Sentence April 7, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009674-2015


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 13, 2018

        Appellant Angelo Maldonado appeals from the judgment of sentence

entered based upon his jury-trial convictions for first-degree murder1 and

possessing an instrument of crime (PIC).2             Appellant asserts that his

conviction for first-degree murder was against the weight of the evidence

because the death occurred when he was highly intoxicated and in the context

of a physical altercation. Appellant additionally asserts that a mistrial should

have been declared because the prosecutor engaged in prosecutorial

misconduct during closing arguments. We affirm.

        On August 8, 2015, John Kyser and a group of friends were playing darts

and shooting pool at Owen’s Bar, located at Cottman Avenue and Roosevelt
____________________________________________


1   18 Pa.C.S. § 2502(a).

2   18 Pa.C.S. § 907.
J-S10034-18



Boulevard, Philadelphia. Kyser had never seen Appellant prior to that night,

but Appellant joined in the group’s pool game and Appellant and Thomas

Ewing, Jr. (Decedent) were on the same pool team. Appellant and Decedent

did not appear to have any conflict between them during the pool game.

     At approximately 3:00 a.m., Decedent and two of his companions stole

several bottles of liquor and fled through the rear entrance of the bar.

Appellant gave chase in his pickup truck.      Appellant found Decedent in a

nearby alley, exited his truck, and stabbed Decedent a dozen times, one of

which hit Decedent’s heart.         Kyser observed Appellant “swinging on

[Decedent].”      N.T. Trial Vol. 1, 4/5/17, at 18. Nicholas Lawrence was with

Kyser and also saw Appellant on top of Decedent. A separate group of people,

including Logan Welch and Brendan Sharp, observed Appellant swinging at

Decedent and heard somebody yell that there was a knife or “he is stabbing

me.” Id. at 146.

     Appellant’s neighbor, Christopher Hinkle, observed Appellant in his

driveway at approximately 3:30 a.m. on the night of the murder.        Hinkle

testified that Appellant had a gash in his leg and was “pretty intoxicated.”

N.T. Trial Vol. 1, 4/6/17, at 31. Appellant admitted to being in a scuffle on

the ground with another man and continuously repeated, “I really messed up

this time.” Id.

     Appellant was tried by a jury from April 3, 2017 to April 7, 2017.

Appellant sought a mistrial because the prosecutor indicated during closing

arguments that Decedent was “gutted like a pig.” Id. at 125. The trial court

                                      -2-
J-S10034-18



instructed the prosecutor not to use that phrase again and denied the request

for a mistrial.

      At the conclusion of the trial, on April 7, 2017, Appellant was convicted

of first-degree murder and PIC. Appellant was sentenced the same day to a

term of life imprisonment without parole for first-degree murder and a

concurrent term of 2½ to 5 years’ incarceration for PIC. On April 8, 2017,

Appellant filed a timely post-sentence motion, which the trial court denied

without a hearing on April 24, 2017. Appellant filed a notice of appeal to this

Court on May 20, 2017. Thereafter, in response to an order of the trial court,

Appellant filed a timely statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

      1. Was [Appellant’s] conviction for first[-]degree murder against
         the weight of the evidence since the evidence clearly
         established that the killing in question occurred when
         [Appellant] was highly intoxicated and in the context of a
         physical argument?

      2. Did the [trial c]ourt err in denying [Appellant’s] request for a
         mistrial when the prosecutor committed prosecutorial
         misconduct during closing arguments by stating Appellant
         had[] “gutted [Decedent] like a pig”?

Appellant’s Brief at 3.

      In his first issue, Appellant asserts that his first-degree murder

conviction is against the weight of the evidence. In support of his contention

that he lacked specific intent to kill, Appellant asserts that he

      expressed no animosity toward the decedent throughout the
      evening in question. The subsequent stabbing occurred during a

                                      -3-
J-S10034-18


       physical fight[3] in which [Appellant] was “very intoxicated” and
       “not coherent.” Indeed, within five minutes of [Appellant] coming
       into contact with Christopher Hinkle, [Appellant] ha[d] lost
       consciousness.”

Appellant’s Brief at 10. According to Appellant, the finding of specific intent

to kill based upon these facts shocks the conscience. Id. at 11.

       “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014) (citation omitted). Additionally,

       [a] verdict is not contrary to the weight of the evidence because
       of a conflict in testimony or because the reviewing court on the
       same facts might have arrived at a different conclusion than the
       factfinder. Rather, a new trial is warranted only when the jury’s
       verdict is so contrary to the evidence that it shocks one’s
       sense of justice and the award of a new trial is imperative
       so that right may be given another opportunity to prevail.
       Where, as here, the judge who presided at trial ruled on the
       weight claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the weight
       of the evidence. Rather, appellate review is limited to whether
       the trial court palpably abused its discretion in ruling on the weight
       claim.

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations omitted).

       “[A] showing of voluntary intoxication can negate the intent necessary

for a conviction of first-degree murder and reduce the crime of murder from

first to third degree.” Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa.

2004). However, the evidence presented “must show that the defendant was


____________________________________________


3 To the extent Appellant implies a self-defense argument by noting the
physical nature of the altercation, it is not developed in his brief.

                                           -4-
J-S10034-18



unable to form the specific intent to kill because he was so overwhelmed or

overpowered by drugs to the point of losing his faculties at the time the crime

was committed.” Id. at 908.

      As the trial court noted in its Pa.R.A.P. 1925(a) opinion, “Hinkle was the

only witness to testify that [Appellant] appeared intoxicated on the night of

the incident.” Trial Ct. Op., 8/3/17, at 5 n.2. Significantly, Hinkle did not

observe Appellant until after the altercation had occurred.       As the court

additionally noted, video footage of Appellant chasing Decedent does not

depict Appellant staggering or swaying. See id. at 10 n.4. Accordingly, the

trial court did not palpably abuse its discretion in denying Appellant’s weight

claim regarding whether Appellant was so overpowered by his intoxication that

he was unable to form a specific intent to kill. See Tharp, 830 A.2d at 528.

Thus, the trial court did not commit an error in this regard.

      Next, Appellant claims that the trial court erred by failing to declare a

mistrial based on prosecutorial misconduct during closing arguments.         In

particular, the prosecutor indicated that Decedent was “gutted like a pig.”

N.T. Trial Vol. 1, 4/6/17, at 125. Appellant argues that “the inevitable effect

of these remarks was to inflame the passion of the jury to such an extent that

they could no longer objectively assess the evidence.” Appellant’s Brief at 12.

      A claim of prosecutorial misconduct is evaluated based upon

      whether the defendant was deprived of a fair trial, not deprived of
      a perfect one. Thus, a prosecutor’s remarks do not constitute
      reversible error unless their unavoidable effect . . . [was] to
      prejudice the jury, forming in their minds fixed bias and hostility


                                     -5-
J-S10034-18


      toward the defendant so that they could not weigh the evidence
      objectively and render a true verdict.

Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010) (citation

omitted).

      Instantly, once the “gutted” remark was made by the prosecutor,

defense counsel objected. The trial court sustained the objection. In front of

the jury, the court warned the prosecutor to “refrain from those kinds of

remarks,” and instructed that she could not use the term “gutted.” N.T. Trial

Vol. 1, 4/6/17, at 125. The prosecutor complied with this directive. In the

words of the court, although the language was “a little overboard[,] . . . the

jury knows it was oratorical flair. It was common sense. He was stabbed a

number of times but he certainly wasn’t gutted. So I am going to deny the

motion for a mistrial.” Id. at 159-60; see Commonwealth v. Chmiel, 889

A.2d 501, 544 (Pa. 2005) (indicating prosecutorial misconduct will not be

found for mere use of oratorical flair). Accordingly, the trial court did not err

by refusing to call a mistrial following the prosecutor’s remarks during closing

arguments.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18

                                      -6-
