J-S60028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    NICOLI ANTONIO SANTANA

                             Appellant                No. 341 MDA 2019


        Appeal from the Judgment of Sentence Entered January 30, 2019
                 In the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0004819-2017


BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 21, 2020

        Appellant Nicoli Antonio Santana appeals from the January 30, ,2019

judgment of sentence entered in the Court of Common Pleas of Berks County

(“trial court”), following his jury convictions for murder in the first degree,

three counts of aggravated assault, possessing instruments of crime, and

three counts of recklessly endangering another person (“REAP”).1            Upon

review, we affirm.

        The facts and procedural history of this case are undisputed.         As

recounted by the trial court:

               On February 28, 2017, [Appellant] entered DeCarlo’s Bar &
        Grill (“DeCarlo’s”) at around 8:50 p.m. [A] [f]ew hours later, on
        March 1, 2017 at around 1 a.m., Ian Moore (“Moore”), Miguel
        Colon (“Colon”), and Johnny Corchado (“Corchado”) met up at
        DeCarlo’s. As soon as Moore, Colon, and Corchado entered
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), (4), 907(a), and 2705, respectively.
J-S60028-19


     DeCarlo’s, [Appellant] immediately stood up and walked to the
     back corner portion of DeCarlo’s. At approximately 1:10 a.m.
     when Moore went to the bathroom and came back to order a drink
     at the front of the bar, Appellant moved to the other side of the
     bar close to the front door and waited leaning against the wall. In
     the almost five-hour term that Appellant was at DeCarlo’s,
     Appellant consumed three drinks total; two bottles of Guinness
     Extra Stout and a small glass of mixed alcohol drink. Moore,
     Colon, and Corchado had drinks and talked briefly at the bar and
     left DeCarlo’s through the front door at around 1:30 a.m.

           A few seconds after Moore, Colon, and Corchado left the bar,
     Appellant followed them and lingered in the vestibule of the bar,
     leaning in and out of the doorway observing Moore, Colon, and
     Corchado walking through the parking lot. Appellant then went
     down the steps and walked through the stone lot and approached
     Moore, Colon, and Corchado stalking the trio while hugging the
     side of the building. When Appellant was about 15 feet from
     Moore, Colon, and Corchado, Appellant pulled a handgun out and
     fired multiple shots at Moore.

           Corchado fled in the direction of DeCarlo’s while Moore and
     Colon fled in the direction of Cherry Street. One of the shots hit
     Colon on his left thigh and one of the shots hit Moore on his arm.
     Colon at that point fled toward his car while Moore fled toward S
     3rd Street. Appellant did not chase Colon but chased Moore onto
     zero hundred block of S 3rd Street.

           Appellant eventually caught up with Moore. At close range,
     Appellant fired multiple shots at Moore[, who] tumbled down to
     the ground. Appellant shot a total of ten rounds at Moore in the
     parking lot and in the vicinity of zero hundred block of S 3rd
     Street, and as a result, Moore suffered three gunshot wounds.
     Two of them were in the chest and abdomen area.

           Appellant started walking away from Moore, but then went
     back and pistol-whipped Moore, who was already on the ground.
     Appellant left the scene, went back to his parked ear on the 200
     block of Cherry Street and drove off. Officers responded to radio
     dispatch for shots fired and arrived at the zero hundred block of S
     3rd Street. Officer Babbit and Officer White arrived at the scene
     and found Moore lying on the ground. Officers asked Moore some
     questions, but Moore was not able to give any answer as he was
     having a hard time breathing. Moore died as a result of the
     gunshot wounds to his chest and abdomen area.

Trial Court Opinion, 5/1/19 at 1-2 (unpaginated) (record citations omitted).

Following a jury trial, Appellant was convicted of the foregoing crimes. On

January 30, 2019, the trial court sentenced Appellant to, inter alia, life


                                    -2-
J-S60028-19



imprisonment. Appellant did not file any post-sentence motions. Appellant

timely appealed. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        On appeal, Appellant raises a single issue for our review:       “Was the

evidence insufficient to sustain Appellant’s conviction for murder in the first

degree.”2 Appellant’s Brief at 1. At the core, Appellant argues only that the

evidence adduced at trial is insufficient to establish that he possessed the

specific intent to kill Moore.3 In support, he claims that he intended only to

“scare” Moore, and not kill him. Appellant’s Brief at 7.

        “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

        The standard we apply in reviewing the sufficiency of the evidence
        is whether viewing all the evidence admitted at trial in the light
        most favorable to the verdict winner, there is sufficient evidence
____________________________________________


2 Appellant fails to state with specificity the element or elements of first-
degree murder upon which he alleges the evidence is insufficient. We,
nonetheless, proceed to the merits of this appeal because we are able to
discern his arguments.
3 To the extent Appellant raises a diminished capacity defense argument in his
reply brief, such argument is waived because it was neither contained in his
nor the Commonwealth’s brief. The Pennsylvania Rules of Appellate Procedure
make clear that an “appellant may file a brief in reply to matters raised by
appellee's brief or in any amicus curiae brief and not previously addressed in
appellant’s brief. Pa.R.A.P. 2113(a). Appellant, therefore, is prohibited from
raising new issues. See Commonwealth v. Fahy, 737 A.2d 214, 218 n.8
(Pa. 1999) (discussing a prior version of Rule 2113(a) that did not address
amicus briefs). Additionally, “a reply brief cannot be a vehicle to argue issues
raised but inadequately developed in appellant’s original brief. When an
appellant uses a reply brief to raise new issues or remedy deficient discussions
in an initial brief, the appellate court may suppress the non-complying
portions.” Id.

                                           -3-
J-S60028-19


     to enable the fact-finder to find every element of the crime beyond
     a reasonable doubt. In applying the above test, we may not weigh
     the evidence and substitute our judgment for the fact-finder. In
     addition, we note that the facts and circumstances established by
     the Commonwealth need not preclude every possibility of
     innocence. Any doubts regarding a defendant’s guilt may be
     resolved by the fact-finder unless the evidence is so weak and
     inconclusive that as a matter of law no probability of fact may be
     drawn from the combined circumstances. The Commonwealth
     may sustain its burden of proving every element of the crime
     beyond a reasonable doubt by means of wholly circumstantial
     evidence. Moreover, in applying the above test, the entire record
     must be evaluated and all evidence actually received must be
     considered. Finally, the finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

     The Crimes Code defines first-degree murder 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.

18 Pa.C.S.A. § 2502(a). We recently explained in Commonwealth v. Baker,

201 A.3d 791 (Pa. Super. 2018), appeal denied, 215 A.3d 963 (Pa. 2019):

     An individual commits first-degree murder when he intentionally
     kills another human being; an intentional killing is defined as a
     willful, deliberate and premeditated killing. To sustain a conviction
     for first-degree murder, the Commonwealth must prove that: (1)
     a human being was unlawfully killed; (2) the accused was
     responsible for the killing; and (3) the accused acted with malice
     and a specific intent to kill.

Baker, 201 A.3d at 795 (citations and quotation marks omitted). “A jury may

infer the intent to kill based on the accused’s use of a deadly weapon on a

vital part of the victim’s body.”    Id. at 795-96 (citation omitted); see

Commonwealth v. Nichols, 692 A.2d 181, 184-85 (Pa. Super. 1997) (“[I]t


                                     -4-
J-S60028-19



is well settled that the use of a deadly weapon on a vital part of the body is

sufficient to establish a specific intent to kill.”).

         Instantly, based upon the evidence presented at trial, as detailed

above and viewed in a light most favorable to the Commonwealth, we agree

with the trial court’s conclusion that the Commonwealth proved beyond a

reasonable doubt that Appellant committed murder in the first degree. The

trial court explained:

       Evidence, including Appellant’s own testimony, established that
       after Appellant saw Moore in DeCarlo’s, Appellant waited at
       DeCarlo’s for at least twenty minutes until Moore left DeCarlo’s;
       Appellant never approached nor spoke to Moore while in the bar,
       and in fact furtively avoided being seen by him. Appellant then
       followed him to the parking lot where Appellant started to shoot
       multiple rounds at Moore. Of the three who fled from the
       shooting, Appellant specifically chose to chase Moore; and
       thereupon when Appellant caught up with Moore; engaged in a
       struggle and shot multiple shots in the abdomen and chest area
       and killed Moore. This sequence of events established by the
       record clearly supports that the killing was a classic murder by
       lying in wait. Moreover, the record shows Appellant shot at Moore
       and inflicted deadly wounds on vital parts, abdomen and chest, of
       his body which supports an inference to specific intent to kill.[4]

Trial Court Opinion, 5/1/19 at 4 (unpaginated). Thus, in light of the foregoing,

especially his fatally shooting Moore in the chest and abdomen, we conclude

that Appellant indeed possessed the requisite and necessary intent to kill

Moore. Accordingly, we affirm the trial court’s judgment of sentence.




____________________________________________


4 See Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008) (noting
that the chest is a vital part of the body); see also Commonwealth v.
Sepulveda, 855 A.2d 783, 788 (Pa. 2004) (noting that abdomen is a vital
part of the human body).

                                           -5-
J-S60028-19



Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




                                  -6-
