J-S02008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWIN SOTO, JR.

                            Appellant                No. 2857 EDA 2013


           Appeal from the Judgment of Sentence September 6, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002866-2012


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                               FILED JUNE 10, 2015

        Appellant, Edwin Soto, Jr., appeals from the September 6, 2013

aggregate judgment of sentence of life imprisonment without the possibility

of parole, imposed after being found guilty by a jury of one count of first-

degree murder, two counts each of attempted murder and aggravated

assault, and one count of carrying a firearm without a license.1 After careful

review, we affirm.

        The trial court has set forth the relevant facts and procedural history

of this case as follows.

                    On the night and early morning leading up to
              the shooting on February 19, 2012, Magina Slowe
              discovered [Appellant] was at a local casino from a
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a), and 6106(a), respectively.
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          post she saw on Facebook. Magina Slowe, was the
          mother of [Appellant]’s child and had an unsteady
          relationship with [Appellant] spanning several years.
          Ms. Slowe, after learning of the Facebook post, sent
          a text message to [Appellant] to ask him why he was
          at the casino rather than watching her daughter.
          [Appellant] then called her, and suggested she found
          out about his time at the casino from a “boy” at the
          casino. [Appellant] was angry and said to Ms. Slowe
          over the phone, he “had something for her and the
          boy,” which she understood to be a threat.

                Sometime around 2:30 A.M. on February 19,
          2012, [Appellant] and his brother, Darryl Moore, left
          the casino and drove to a popular late-night
          restaurant called J&S Seafood. The two men entered
          the restaurant and saw the familiar face of Magina
          Slowe.

                Mr. Moore approached Ms. Slowe, gave her a
          hug, and started talking to her. Mr. Moore is the
          uncle of Ms. Slowe’s (and [Appellant]’s) daughter.
          While Mr. Moore and Ms. Slowe spoke, [Appellant]
          attempted to interrupt the conversation, but both Mr.
          Moore and Ms. Slowe remained unresponsive to
          [Appellant]’s attempts. [Appellant] was upset about
          Mr. Moore speaking to Ms. Slowe, because
          [Appellant] believed Ms. Slowe was responsible for
          [Appellant]’s sister being incarcerated. [Appellant],
          while being ignored, lifted up his shirt, exposing his
          gun to Mr. Moore and Ms. Slowe. While Mr. Moore
          and Ms. Slowe were talking, Jamecia Toler, the
          cousin and close friend of Ms. Slowe, entered the
          restaurant to join Ms. Slowe and one other friend.
          Mr. Moore playfully threw a piece of paper at Ms.
          Toler and began talking to her.

                [Appellant] and Mr. Moore went to leave the
          restaurant once they received food. As soon as they
          got into Mr. Moore’s car, parked just outside the
          storefront, they started arguing about whether or not
          Mr. Moore should be speaking to Ms. Slowe.




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                [Appellant] then stormed out of the car and
          shot through the windshield, hitting Mr. Moore in the
          upper right chest as Mr. Moore was trying to exit the
          car. Then [Appellant] shot Mr. Moore again, which
          resulted in Mr. Moore falling to the ground.
          [Appellant] walked over to Mr. Moore, stood over
          him, and pointed a gun at Mr. Moore’s head. Mr.
          Moore pleaded for his life.

                Meanwhile, as the people inside J&S heard the
          gun shots, Ms. Toler ran out the front of the store
          where the shooting was taking place. Ms. Toler was
          shot by [Appellant], and died at the scene. The
          medical examiner was unable to conclusively
          determine how many times she was shot, because
          one or more bullets could have made several entries
          and exits through her body. However, the medical
          examiner found five gunshot wounds on Ms. Toler.
          The fatal shot went through her heart and left lung.

                 After firing shots outside the storefront,
          [Appellant] again entered J&S Seafood. [Appellant]
          allowed two unknown males in the restaurant to
          leave and then he immediately began shooting at
          Ms. Slowe inside the store. She was shot in the
          chest, and then stumbled to the back of the store
          where he continued to shoot at her. [Appellant]
          exited the store briefly, for an unknown reason, and
          then returned back to Ms. Slowe.          [Appellant]
          continued shooting at Ms. Stowe. She was shot a
          total of thirteen times. [Appellant] aimed the gun at
          her head as she pleaded for him to think of his
          daughter. He left the rear entrance of the building,
          and shot himself in his chin through the top of his
          head.

                At trial, there was ample evidence regarding
          [Appellant]'s intoxication and mens rea. Mr. Moore
          saw [Appellant] having one beer at the casino,
          before they arrived at J&S Seafood together. Both,
          Mr. Moore and Ms. Slowe, testified to having prior
          personal knowledge of how [Appellant]’s behavior
          changes while intoxicated.       Additionally, each of
          them testified to [Appellant]’s absence of intoxication

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          behaviors at the time leading up to the shooting and
          during the shooting.       Mr. Moore testified to
          [Appellant] walking straight without stumbling, and
          being able to clearly understand [Appellant]’s
          speech.    Ms. Slowe also testified to [Appellant]
          walking normally and being able to understand
          everything [Appellant] said that night without
          trouble. She also claimed to be able to know when
          [Appellant] is drunk, because normally his face will
          get red, and his eyes become low. Ms. Slowe said
          none of these facial changes were apparent at the
          scene of the shooting.

                [Appellant]’s toxicology report dated February
          19, 2012 from Crozer-Chester Medical Center, found
          a blood alcohol level of 160 milligrams per deciliter.
          The blood sample for this report was taken at 3:54
          A.M., and the incident occurred at approximately
          3:08 A.M.

                Dr. Richard Saferstein, Ph.D., testified at trial
          on behalf of [Appellant] as an expert witness in
          forensic toxicology. Dr. Saferstein converted the
          160 milligrams per deciliter to a whole blood reading
          of .137 percent.         Moreover, he determined
          [Appellant]’s blood alcohol level was .148 at the time
          of the shooting. According to Dr. Saferstein, it would
          be impossible to achieve this blood alcohol level by
          drinking one beer. Dr. Saferstein further opined that
          [Appellant] would have to consume approximately
          ten ounces of 80 proof alcohol in order to reach the
          estimated blood alcohol level at the time of the
          shooting. Dr. Saferstein also affirmed [Appellant]
          was in a significantly impaired state with a
          reasonable degree of scientific certainty.

                On cross-examination, the Commonwealth
          focused on the symptoms Dr. Saferstein claimed
          [Appellant] would likely be showing at his reported
          alcohol level. For example, poor balance and poor
          body coordination.       The Commonwealth also
          established before the jury that Dr. Saferstein did
          not take into account any information about how
          [Appellant] personally responds to alcohol or the

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              accuracy of [Appellant]’s shooting. Dr. Saferstein
              also opined on cross [examination] that [Appellant]
              was aware of what he was doing when he committed
              the offenses. The Commonwealth’s expert witness
              for forensic toxicology was stricken because the
              witness failed to express his opinion with a
              reasonable degree of professional certainty.

                    The jury in [Appellant]’s trial was properly
              charged with the following instructions, regarding the
              intoxication defense:

                     The defendant is permitted to claim as a
                     defense that he was so overpowered by
                     intoxicants that the defendant had lost control
                     of his faculties and was incapable of forming
                     the specific intent to kill required by First
                     Degree Murder. […] The Commonwealth has
                     the burden of disproving this defense. Thus,
                     you cannot find the defendant guilty of First
                     Degree Murder unless you are satisfied beyond
                     a reasonable doubt that the defendant, despite
                     any intoxicated condition, was at the time
                     capable of forming a specific intent to kill and
                     did in fact form that intent.

Trial Court Opinion, 10/23/14, at 1-5 (internal citations omitted).

       On June 25, 2013, at the conclusion of Appellant’s trial, the jury found

him guilty of the aforementioned offenses.            On September 6, 2013,

Appellant was sentenced to an aggregate judgment of sentence of life

imprisonment without the possibility of parole.2      On September 10, 2013,

____________________________________________


2
  Specifically, Appellant was sentenced to life imprisonment without the
possibility of parole on the count of first-degree murder. Each count of
aggravated assault merged with the respective attempted murder count, and
on each of those counts Appellant received sentences of 20 to 40 years’
imprisonment, to run consecutively to each other and to the first-degree
(Footnote Continued Next Page)


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

September 12, 2013. On October 10, 2013, Appellant filed a timely notice

of appeal.3

      On appeal, Appellant raises the following issue for our review.

              Whether the evidence was sufficient to sustain the
              conviction of first[-]degree murder where the
              Commonwealth failed to disprove [Appellant]’s
              evidence that his level of intoxication precluded him
              from forming the specific intent to kill as required for
              this offense?

Appellant’s Brief at 5.

      We begin by noting our well-settled standard of review. “In reviewing

the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, viewed in a light

most favorable to the Commonwealth as the verdict winner, support the

jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.

Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its

burden by wholly circumstantial evidence and any doubt about the

defendant’s guilt is to be resolved by the fact finder unless the evidence is so

                       _______________________
(Footnote Continued)

murder charge. Finally, Appellant was sentenced to two and one-half to five
years’ imprisonment for the firearms charge, to run concurrent to the first-
degree murder charge.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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weak and inconclusive that, as a matter of law, no probability of fact can be

drawn from the combined circumstances.” Commonwealth v. Watley, 81

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate

court, we must review “the entire record … and all evidence actually

received[.]”     Id. (internal quotation marks and citation omitted).   “[T]he

trier of fact while passing upon the credibility of witnesses and the weight of

the evidence produced, is free to believe all, part or none of the evidence.”

Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014).         “Because evidentiary

sufficiency is a question of law, our standard of review is de novo and our

scope of review is plenary.”     Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,

135 S. Ct. 145 (2014).

      Instantly, Appellant was convicted of murder of the first degree, which

is codified as follows.

               § 2502. Murder

               (a) Murder of the first degree.--A criminal
               homicide constitutes murder of the first degree when
               it is committed by an intentional killing.

                                        …

               (d) Definitions.--As used in this section the
               following words and phrases shall have the meanings
               given to them in this subsection:


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                                      …

            “Intentional killing.” Killing by means of poison, or
            by lying in wait, or by any other kind of willful,
            deliberate and premeditated killing.


18 Pa.C.S.A. § 2502.

      Furthermore, our Supreme Court has consistently stated when proving

the sufficiency of the evidence for first-degree murder, the Commonwealth’s

burden is as follows.

                  In order to sustain a conviction for first-degree
            murder, the Commonwealth must prove that: (1) 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 to
            kill. Specific intent and malice may be established
            through circumstantial evidence, such as the use of a
            deadly weapon on a vital part of the victim’s body.

Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014) (internal

citation omitted), cert. denied, Arrington v. Pennsylvania, 135 S. Ct. 479

(2014).

      Instantly, the focus of Appellant’s argument is based on whether he

had the “specific intent to kill.” Appellant’s Brief at 11. Appellant correctly

asserts that the defense of voluntary intoxication “can be used to negate the

‘specific intent to kill’ element of first degree murder.”     Id.    Appellant

concedes the standard is very high and that he must show he was

“overwhelmed to the point of losing his faculties and sensibilities.”      Id.,

quoting Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008), cert.


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denied, Blakeney v. Pennsylvania, 555 U.S. 1177 (2009).                 However,

Appellant cites Dr. Richard Saferstein’s testimony regarding Appellant’s

blood alcohol content (BAC) and his expert opinion of the mental state of a

person with that BAC.      Id. at 12.    Appellant asserts that the “evidence

presented    by    Dr.   Saferstein     went   unanswered,     [therefore]    the

Commonwealth simply failed to prove beyond a reasonable doubt that

[Appellant] had the requisite specific intent to kill when he fired the gun.”

Id. at 13.

      We begin by noting Appellant acknowledges taking the following steps

to shoot the three victims, and he concedes he killed Toler.

                    The two men left the casino at approximately
             2:30 AM and drove to a food store known as “J&S
             Seafood” to eat. Once there, they encountered a
             woman [Appellant] had dated in the past, Magina
             Slowe, and some of her friends. They all talked for a
             bit, after which [Appellant] and his brother returned
             to their car with the food.

                  At this point, however, he became agitated and
             began arguing with Moore. He “stormed” out of
             the car and began firing gunshots that hit his
             brother. Then, he went back into the food
             store and shot Ms. Slowe and another woman,
             Jamecia Toler. Ms. Toler died from her wounds.

Appellant’s Brief at 6 (emphasis added; internal citations omitted).

      Further, as the trial court noted in its opinion, “[s]pecific intent to kill

could have been reasonably inferred by either [Appellant] shooting [Toler]

through her head, or even from [Appellant]’s selectiveness when targeting

his victims.” Trial Court Opinion, 10/23/14, at 6. Pennsylvania courts have

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consistently held that such evidence is sufficient to establish the specific

intent to kill for a first-degree murder conviction. See Commonwealth v.

Mattison, 82 A.3d 386, 392 (Pa. 2013) (concluding sufficient evidence of

specific intent to kill existed where, “eye witness testimony demonstrate[d]

that after [the defendant] … fatally shot the victim in the head at close range

while the victim was lying defenseless on the ground[]”), cert. denied,

Mattison v. Pennsylvania, 135 S. Ct. 221 (2014); Commonwealth v.

Chine, 40 A.3d 1239, 1242 (Pa. Super. 2012) (concluding the defendant

“surely intended the shooting to have fatal results as he fired three shots at

the victim’s head, a vital part of the body[]”), appeal denied, 63 A.3d 773

(Pa. 2013).

      Nevertheless, voluntary intoxication may negate the defendant’s

specific intent to kill, and as such, evidence of voluntary intoxication “may

be offered by the defendant whenever it is relevant to reduce murder from a

higher degree to a lower degree of murder.” 18 Pa.C.S.A. § 308.

              Intoxication, however, may only reduce murder to a
              lower degree if the evidence shows that the
              defendant was overwhelmed to the point of losing
              his faculties and sensibilities. The value of such
              evidence is generally for the finder of fact, who is
              free to believe or disbelieve any, all, or none of the
              testimony addressing intoxication.

Blakeney, supra; see also Commonwealth v. Vandivner, 962 A.2d

1170, 1177 (Pa. 2009) (citations and quotation marks omitted) (holding

“[w]hether a defendant has established that his faculties and sensibilities


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were so overwhelmed with drugs so that he could not form the specific

intent to kill is a question of fact solely within the province of the jury, who

is   free   to     believe   any,   all,   or   none   of   the   testimony   regarding

intoxication[]”), cert. denied, Van Divner v. Pennsylvania, 559 U.S. 1038

(2010).

       Additionally, we note the Commonwealth’s burden in light of such a

defense is as follows.

                 In any criminal prosecution, the Commonwealth has
                 an unshifting burden to prove beyond a reasonable
                 doubt all elements of the crime.         One of such
                 elements in first degree murder is, of course, a
                 specific intent to kill.      This burden is neither
                 increased nor diminished by an attempt by a
                 defendant to disprove the element of intent by a
                 showing of lack of capacity, due to intoxication, to
                 form such an intent. Whether the Commonwealth
                 will, in a particular case, elect to carry that burden
                 without introducing evidence to negate the existence
                 of a disabling condition of intoxication, or whether it
                 will seek to introduce such evidence, will be for it to
                 decide; as in every case, the risk of non-persuasion
                 remains with the Commonwealth.           Whatever the
                 district attorney’s decision may be in that regard, it
                 is error for the trial judge to instruct the jury that
                 there is a burden upon the defendant to establish his
                 intoxication by a preponderance of the evidence.
                 Such evidence is offered by the defense solely to
                 cast doubt upon the existence of the specific intent
                 to kill and, as with all elements of the crime, the
                 defendant has no burden of persuasion.

                       We emphasize that our insistence upon the
                 Commonwealth’s burden to prove beyond a
                 reasonable doubt all elements of the crime does not
                 require it to disprove a negative. Thus, to enable a
                 defendant to seek to negate specific intent by
                 reliance on the fact of his intoxication, there must be

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             evidence in the case sufficient to place in issue that
             fact concerning defendant’s mental condition. Such
             evidence may be adduced by the defendant as part
             of his case, or, conceivably, may be found in the
             Commonwealth’s own case in chief or be elicited
             through cross-examination. Once a defendant has
             come forward with such evidence, or it is in the case
             otherwise, the Commonwealth, as we have indicated
             above, may introduce testimony to refute it, but is
             under no duty to do so.

Commonwealth v. Rose, 321 A.2d 880, 884-885 (Pa. 1974).

      Instantly, the trial court accurately recounted the testimony presented

to the jury at trial.

             In the present case, there was a strong amount of
             conflicting testimony regarding [Appellant]’s defense
             of intoxication.     In favor of [Appellant], the
             toxicology report and the expert witness in
             toxicology suggested [Appellant] had a lot more than
             just one beer. Dr. Saferstein converted the results
             from the toxicology report, which was 160 milligrams
             per deciliter, to a whole blood reading of .137
             percent. The blood sample was taken within an hour
             after the incident. Dr. Saferstein also opined on
             direct examination that [Appellant] was in a
             significantly impaired state.      Additionally, the
             Commonwealth’s toxicology expert was stricken from
             the record.

                    Alternatively, in favor of the Commonwealth,
             Mr. Moore and Ms. Slowe both testified about failing
             to observe any signs of drunkenness. Mr. Moore
             testified at trial that he saw [Appellant] drinking only
             one beer at the casino. Ms. Slowe testified about
             how [Appellant]’s face normally becomes red and his
             eyes hang low when he drinks. Then she testified to
             the absence of these facial signs on the night of the
             incident.     Moreover[,] on cross examination of
             [Appellant]’s expert witness in toxicology, Dr.
             Saferstein, opined that [Appellant] was aware of
             what he was doing when he committed the offenses.

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             Dr. Saferstein also explained on cross, that
             [Appellant] would likely be showing signs of poor
             balance and poor body coordination. However, the
             Commonwealth’s witnesses denied any of those
             signs being apparent.

                    There was ample evidence and testimony for
             the jury to reach the decision they made. Conflicting
             evidence is not a reason to grant a new trial. Trials
             naturally bring about an adversarial setting. The
             jury is free to believe any, all, or none of the
             evidence.     In this case, the jury chose to find
             [Appellant]’s intoxication did not overpower his
             ability to form the specific intent to kill.

Trial Court Opinion, 10/23/14, at 8-9. Upon review of the certified record

we conclude that the trial court’s findings are completely supported by the

record.    Further, as noted, the jury was free to believe any or all of the

evidence presented as to whether Appellant could form the specific intent to

kill.      Vandivner,   supra.     Here,      the   jury   clearly   believed   the

Commonwealth’s witnesses’ accounts and found that Appellant’s intoxication

did not negate his specific intent to kill.     As a result, the evidence was

sufficient to disprove his intoxication defense beyond a reasonable doubt,

and the Commonwealth met its burden regarding Appellant’s specific intent

to kill. See, e.g, Blakeney, supra.

        Based on the foregoing, we conclude the Commonwealth presented

sufficient evidence to enable the jury to find Appellant had the specific intent

to kill.    Accordingly, the trial court’s September 6, 2013 judgment of

sentence is affirmed.

        Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2015




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