J. S12038/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
NASUIL MARTINEZ,                            :
                                            :
                          Appellant         :     No. 1680 EDA 2014


            Appeal from the Judgment of Sentence February 28, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0002804-2011
                                         CP-51-CR-0002773-2011
                                         CP-51-CR-0002774-2011
                                         CP-51-CR-0002775-2011
                                         CP-51-CR-0011128-2011

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 09, 2015

        Appellant, Nasuil Martinez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a waiver

trial and his convictions for one count of first-degree murder,1 four counts of

attempted murder,2 four counts of aggravated assault of a protected class




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 901.
J. S12038/15


member,3 four counts of assault of a law enforcement officer,4 one count of

theft of a handgun,5 one count of robbery,6 and one count of possessing an

instrument of crime.7      Appellant contends the evidence was insufficient to

convict him of murder where the conviction was based upon his possession

of the murder weapon before and after the homicide. We affirm.

        The trial court summarized the facts and procedural history of this

case as follows:

              On December 9, 2010, [Appellant] was present at the
           Black Pumpkin, a bar on Whitaker Avenue and Wyoming
           Avenue in Philadelphia.        Frank Parran was on duty
           providing security. Parran was armed with a .45 caliber
           pistol, which was housed in a holster with a faulty closing
           mechanism. As a part of his duties, Parran searched
           individuals entering and leaving the bar, including
           [Appellant], who frequently entered and left the bar that
           evening. At approximately 2:45 a.m. on December 10,
           2010, Parran noticed that his firearm was missing from its
           holster, having last checked to confirm that the firearm
           was in his possession at approximately 2:00 a.m. Parran
           reviewed the security footage taken by a surveillance
           camera located within the bar and noticed that [Appellant]
           was the only individual in his vicinity at the time that he
           believed his firearm had been taken. Later that day,
           Parran identified [Appellant] in a photo array.



3
    18 Pa.C.S. § 2702.
4
    18 Pa.C.S. § 2702.1.
5
    18 Pa.C.S. § 3921.
6
    18 Pa.C.S. § 3701.
7
    18 Pa.C.S. § 907.



                                      -2-
J. S12038/15


           In the early morning hours of December 10, 2010,
       sometime before 3:00 a.m., Officer Kevin [Gorman] and
       his partner were on patrol, driving eastbound on Allegheny
       Street, when they noticed a silver Grand Marquis traveling
       towards them at an extremely high rate of speed. The
       officers initiated a traffic stop at Hope Street and
       Westmoreland Street. Upon Officer Gorman exiting the
       police vehicle, [Appellant], seated in the back passenger
       side seat of the Grand Marquis, exited the vehicle and ran
       northbound up Hope Street and Gorman pursued.
       [Appellant] then scaled a chain-link fence on the side of
       the street, turned, and shot twice at Gorman with a black
       handgun, striking him once in the left shoulder. Officer
       Gorman lost sight of [Appellant] at this time. The bullet
       that struck Gorman was recovered in the sleeve of his
       shirt, while two fired cartridge cases were later recovered
       by the Crime Scene Unit. The remaining occupants of the
       Grand Marquis, Miguel Montalvo, Neftaly Aulet, and Hector
       Ortiz, were transported to the Philadelphia Police Station at
       8th and Race Street. Montalvo and Aulet both identified
       [Appellant] in a photo array. Later in the afternoon of the
       same day, Gorman identified [Appellant] in a photo array
       as the individual who had shot him.

          At some point in mid-December, [Appellant] began
       staying in the basement apartment of Tillie Moless on
       Sanger Street in Philadelphia. This apartment had an
       entrance separate from the rest of the building, where
       individuals could enter and exit without entering any
       common area of the residence. While staying with Moless,
       [Appellant] constantly had a firearm in his possession,
       either on his belt or in his hand. When Moless asked [him]
       why he seemed nervous all the time, [Appellant] showed
       her a TV news segment, indicating that he was wanted for
       Gorman’s shooting.

          At approximately 2:00 a.m. on December 21, 2010, the
       decedent, Carlos Fernandez, was returning home from a
       night at the Sugar House Casino in Philadelphia. Jeanette
       Bobe, Fernandez’s wife, briefly met with him in the
       downstairs portion of the house before returning upstairs
       to return to bed. Shortly thereafter, Bobe heard multiple
       gunshots coming from the first floor of her home. Bobe
       went into the hallway in order to gather her two children


                                   -3-
J. S12038/15


           and saw Fernandez lying on the floor. Bobe then locked
           herself and her children in her room and dialed 911,
           informing the police that her husband was shot and that
           someone was in the house. While talking with the police,
           Bobe heard a male voice through her bedroom door, telling
           her to give him all the money in the house and that he
           would leave them alone.         Subsequent investigation
           revealed that Fernandez had been shot a total of three
           times in the chest, and one grazing shot to his arm. Two
           bullets were recovered from the body.

              Surveillance video footage from the casino
           showed Fernandez wearing a distinctive set of
           earrings and a watch on the night he was murdered.
           According to Bobe, Fernandez was wearing the earrings
           and watch when he returned home from the casino.
           Police did not find any earrings or watch on
           Fernandez following the murder.

              Approximately three months before Fernandez’s
           murder, September 27, 2010, [Appellant] and Fernandez
           had been involved in an incident arising out of Fernandez’s
           loaning of money to [Appellant’s] sister, Littles. Fernandez
           had loaned Littles $300, keeping Littles’ car as collateral.
           A friend of Littles, Darnella,[8] sought the return of the
           vehicle without payment on the debt and the situation
           spiraled into an argument. [Appellant] paid Fernandez the
           $300 in order to “drop the confrontation,” while Darnella
           yelled that she was “going to get someone to shoot
           [Fernandez] or kill him, or whatever.”             Fernandez
           responded that he could “get guns” if needed, while
           [Appellant] stated that he had already been shot before,
           showing a scar.

              On December 22, 2010, police received information that
           [Appellant] might be located at Moless’s Sanger Street
           residence.   SWAT officers arrived at the house at
           approximately 4:15 in the morning, together with police
           from the 2nd District. Police subsequently entered the
           home, searching for [Appellant]. Sergeant [Christopher]
           Binns, together with Officers [Michael] Mocharnuk and

8
    Our review of the record did not reveal her last name.



                                      -4-
J. S12038/15


       [Francis] Whalen, descended into the basement,
       announcing their presence.      All three officers were
       equipped with protective tactical gear, including body
       armor and a Kevlar helmet. Upon entering the basement
       the officers found a closed door and wall, separating the
       basement into two halves. Sergeant Binns opened the
       door, while Officer Mocharnuk searched the room beyond.
       Officer Whalen remained behind the wall separating the
       rooms.     Immediately upon entering the room, Officer
       Mocharnuk located and recognized [Appellant], who was
       standing behind a bed towards the back wall.

           Officer Mocharnuk ordered [Appellant] to show his
       hands and informed Sergeant Binns that he had located
       [him], whereupon [Appellant] disappeared from view.
       Immediately      upon     losing   sight     of  [Appellant],
       approximately five to eight gunshots were fired from the
       location where [Appellant] was last seen.             Officer
       Mocharnuk was not hit by the gunfire. Sergeant Binns was
       struck in the left temple-area on his helmet during the
       initial volley. The force of the bullet strike knocked Binns
       into Mocharnuk, who heard the distinctive sound of the
       bullet striking the helmet. Officer Whalen was struck in
       the direct center of his vest, where a ceramic trauma plate
       provided additional protection, by a bullet that punctured
       the interior wall separating him from the room where
       [Appellant] was located. The three officers returned fire
       and retreated up the staircase to the main floor of the
       building. [Appellant] fired a second volley of shots while
       the officers were retreating.

          Upon the officers[’] retreat, [Appellant] stated, “Come
       on down, I got clips for days.” [Appellant] further stated
       that he had a female hostage in the basement and that he
       had booby-trapped the basement door with a grenade.
       Officer [Inocencio] Amaro entered into negotiations with
       [Appellant], centered largely on providing [Appellant] with
       a cell phone.     After approximately two hours, officers
       heard a single gunshot from the basement. [Appellant]
       then stated “Oh, shit, the gun went off” and requested
       assistance. [Appellant] was bleeding from a wound in the
       neck/shoulder area and was unconscious at the base of the
       stairs when officers re-entered the basement, taking
       [Appellant] into custody and providing medical assistance.


                                   -5-
J. S12038/15


          Recovered from the basement were twenty-three
          individual pieces of ballistic evidence and the pistol stolen
          from Parran two weeks earlier.

             [Appellant] was subsequently treated at Temple
          University Hospital, which took custody of [his]
          personal items upon his admittance, namely two
          earrings and a watch, and gave these items to
          [Appellant’s] mother.       Detective [Kenneth] Rossiter
          obtained a warrant and seized the two earrings and a
          watch repair slip at [Appellant’s] mother’s home on April
          28, 2011, while the watch itself was recovered the next
          day from the repair shop. Detective Rossiter then asked
          the victim’s wife, Bobe, if she could identify the earrings
          and watch as belonging to her late husband.          Bobe
          identified the jewelry, stating that she had no doubt
          that the jewelry was owned by Fernandez. In May,
          2011, Tillie Moless, owner of the apartment where
          [Appellant] was found, recovered a camera that had been
          recording video during a forty-seven minute section of the
          stand-off between [Appellant] and the police. In the
          video, [Appellant] could be clearly seen in
          possession of a semi-automatic firearm and wearing
          the jewelry that would be recovered by the hospital
          following the conclusion of the stand-off.

Trial Ct. Op., 8/13/14, at 2-7 (footnote and citations omitted).

      At trial, Officer William Trenwith testified, inter alia, as follows: he had

been assigned to the Crime Scene Unit for 21 years. N.T., 11/5/13, at 37-

38. Fernandez did not have a watch or earrings on when he conducted his

investigation on the night of the murder. Id. at 47-48. He collected “three

fired cartridge cases .45 caliber” from the premises.

      Dr. Gary Collins, deputy chief of the Medical Examiner’s Office,

testified at trial.   Id. at 90.   The entrance of the first gunshot wound he

described was located on the right side of the chest.         Id. at 94.    “The



                                       -6-
J. S12038/15


wound went through the chest from front to back and slightly from

the right side to the left side and it went through the heart and the

left lung and existed on the left side of his back.”      Id. at 95.   Another

gunshot wound went through the soft tissue of Fernandez’s chest, through

the “right lung, esophagus, left lung, and a bullet was recovered

somewhere in the soft tissues of the armpit on the left side.” Id. at 96. The

third gunshot wound was lower than the second gunshot wound. Id. The

fourth gunshot wound was a graze wound, “located on the inner aspect of

the arm.” Id. at 97.

      Officer Gregory Welsh, “an expert in the field of firearms identification

and tool mark analysis[,]” testified at trial.   Id. at 204.   He “perform[ed]

ballistic analysis with respect to several fired cartridge casings [“FCC”] as

well as a .45 handgun related to [the] homicide and shootings of police

officers[.]” Id. at 205. He testified regarding the three separate incidents.

Id. at 207. The FCC’s from Officer Gorman’s shooting on Hope Street

and the SWAT team shootings on Sanger Street were determined to

have been fired from the same gun. Id. at 222. The FCC’s from the

homicide scene were fired from the same gun. Id. at 225-26. Welsh

responded in the affirmative when asked: “Were the findings that you made

with respect to matching up the fired cartridge casings from all three scenes

done so within a reasonable degree of scientific certainty?” Id. at 227.




                                     -7-
J. S12038/15


      Appellant was convicted following a three day non-jury trial.       On

February 28, 2014, he was sentenced to an aggregate sentence of life plus

80 to 160 years’ imprisonment.       Post-sentence motions were filed and

denied.   This timely appeal followed.      Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 9 The trial

court filed a responsive opinion.

      Appellant raises the following issue for our review:10   “Was not the

evidence insufficient to sustain [A]ppellant’s conviction of murder where the

conviction was based upon [A]ppellalnt’s possession of the murder weapon

before and after the homicide?” Appellant’s Brief at 2.




9
   Appellant filed a Rule 1925(b) statement. He then filed a request for an
extension of time to file a Rule 1925(b) statement upon receipt of all of the
notes of testimony. The court entered an order on June 30, 2014, granting
the request for an extension of time. Appellant filed a supplemental 1925(b)
statement on July 7, 2014. See Pa.R.A.P. 1925(b)(2) (“Upon application of
the appellant and for good cause shown, the judge may . . . permit an
amended or supplemental Statement to be filed. Good cause includes, but is
not limited to, delay in the production of a transcript necessary to develop
the Statement . . . .”).
10
   We note that Appellant raised an additional issue in his supplemental Rule
1925(b) statement. He stated: “The sentences imposed consecutively to life
without parole were unreasonably excessive.” This issue was not raised in
Appellant’s brief on appeal and is therefore waived. See Commonwealth
v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (“issue included in appellant’s
‘Statement of Questions Involved’ was waived by failure to address issue in
brief itself”).




                                    -8-
J. S12038/15


      Appellant contends the evidence was insufficient to convict him of

murder of the first degree.11   He avers “[t]he conviction for murder . . .

rested on circumstantial evidence that [A]ppellant was in possession of

the murder weapon both eleven days before the killing and more than a day

after the killing and [A]ppellant’s possession of jewelry similar in appearance

to (and identified as) that having belonged to decedent.”           Id. at 11

(emphasis added). He avers “[t]here was no evidence that [A]ppellant had

any animosity toward the decedent.”          Id. at 12.      Appellant claims


11
   Initially, however, we note that Appellant's argument consists of two and
one-third pages in support of his insufficiency of the evidence claim. He
cites the elements of first degree murder with reference to the statute. He
cites one case without setting forth the principle for which it is cited. See
Pa.R.A.P. 29119(b). Appellant’s Brief at 11-13. This court has stated:

         Pursuant to the Pennsylvania Rules of Appellate Procedure,
         failure to cite to relevant authority provides a basis for us
         to find waiver. See Pa.R.A.P. 2119; Commonwealth v.
         Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (holding
         that appellant’s failure to properly develop claims in brief
         rendered the claims waived); Commonwealth v. Drake,
         [ ] 681 A.2d 1357, 1360 ([Pa. Super.] 1996) (explaining
         that this Court will not become the counsel for an
         appellant, “and will not, therefore, consider issues . . .
         which are not fully developed in [the] brief[ ]”) (citation
         omitted). Nevertheless, considering that the trial court
         addressed [the a]ppellant’s [. . .]       claim in its well-
         reasoned Rule 1925 opinion, we consider the merits of [the
         a]ppellant’s claim.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 n.3 (Pa. Super. 2012),
appeal denied, 64 A.3d 630 (Pa. 2013). Similarly, in the instant case,
because the trial court addressed Appellant’s claim in its well-reasoned Rule
1925(a) opinion, we will consider the merits of Appellant’s insufficiency
claim. See id.



                                     -9-
J. S12038/15


“[a]lthough the Commonwealth argued that robbery was the motive, that is

inconsistent with the facts that the decedent still had rings, a bracelet and

cash on him.”     Id. (emphasis added).         Appellant states “[t]he homicide

conviction rests entirely on [A]ppellant’s exclusive possession of the firearm

before and after the killing . . . .” Id. at 13. We find no relief is due.

       “A claim challenging the sufficiency of the evidence is a question of

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

            [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict. . . .

                                   *     *      *

             When reviewing the sufficiency of the evidence, an
         appellate court must determine whether the evidence, and
         all reasonable inferences deducible from that, viewed in
         the light most favorable to the Commonwealth as verdict
         winner, are sufficient to establish all of the elements of the
         offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted).

      Section 2502(a) of the Crimes Code defines first degree 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. § 2502(a).

      Our Pennsylvania Supreme Court has stated:


                                       - 10 -
J. S12038/15


           In order to sustain a conviction for first-degree murder,
        the Commonwealth must demonstrate that a human being
        was unlawfully killed; the defendant was responsible for
        the killing; and the defendant acted with malice and a
        specific intent to kill, i.e., the killing was performed in an
        intentional, deliberate, and premeditated manner. Specific
        intent 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. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (citations

omitted and emphasis added). “[P]roof of a motive is not necessary to

establish a specific intent to kill.” Commonwealth v. Robinson, 364 A.2d

665, 669 (Pa. 1976) (emphasis added).

     The trial court found the evidence was sufficient to establish that

Appellant killed Fernandez. The court opined:

        The testimony of multiple witnesses established that
        [Appellant] was present in The Black Pumpkin the night
        that Parran’s firearm was stolen. Parran testified that
        [Appellant] was the only individual with the opportunity to
        steal the weapon. Both the driver of the Grand Marquis
        and a fellow passenger testified that [Appellant] was
        present in the car when police pulled it over shortly after
        the group left the bar. Those same individuals, as well as
        Officer Gorman, testified that [Appellant] fled from the
        vehicle.      Officer  Gorman     subsequently   identified
        [Appellant] as the individual who had shot him in the
        shoulder after being shown a photo array containing
        [Appellant’s] photo. Ballistics analysis confirmed that
        Parran’s stolen firearm was used in Officer Gorman’s
        shooting. Tillie Moless testified that [Appellant] had
        a firearm in his possession for the entirety of his
        stay at her house, keeping it either in his hands or in his
        belt. Ballistics analysis further confirmed that this
        same firearm was used in the early morning hours of
        December 21,2010 to shoot and kill Fernandez in his
        home.       On December 22, 2010, the day after
        Fernandez’s      shooting,    this    firearm    was     in


                                    - 11 -
J. S12038/15


         [Appellant’s] possession when SWAT officers
         entered the basement and engaged [Appellant] in a
         shoot-out and standoff. A forty-seven minute video
         of   the   standoff   clearly  showed     [Appellant]
         possessing Parran’s handgun. After the shootout, that
         handgun was seized by police, allowing ballistics
         analysis that not only tied that firearm to the
         shooting of Fernandez, but also to the prior shooting
         of Officer Gorman, and the subsequent shooting of
         SWAT officers Binns and Whalen. That [Appellant]
         possessed and used the murder weapon, both before and
         after the murder was compelling evidence that he shot
         Fernandez.

            Moreover, there was additional compelling evidence to
         establish that [Appellant] was the killer. Pictures taken
         from the Sugar House Casino surveillance cameras
         clearly showed Fernandez wearing a pair of diamond
         clustered earrings and a watch, all of which were
         missing after his death. The video of the standoff
         the day after the murder showed [Appellant]
         wearing an identical pair of diamond cluster earrings
         and watch.        The testimony of Detective Rossiter
         established that this jewelry was taken into the possession
         of Temple University Hospital when [Appellant] was
         receiving medical care. These same pieces of jewelry were
         released to [Appellant’s] mother, who still had the earrings
         when police arrived with a seizure warrant. The watch was
         later recovered where [Appellant’s] mother had taken it for
         repair. All pieces of jewelry were positively identified by
         Ms. Bode upon their recovery as being the jewelry
         belonging to Fernandez.

            . . . Evidence of [Appellant’s] intent to kill may be
         inferred from his shooting Fernandez three times in
         the chest.

Trial Ct. Op. at 8-10 (citations omitted and emphases added).

      The trial court found that “there was clearly sufficient evidence for a

fact finder to conclude that [Appellant killed] Fernandez in the early morning

hours of December 21, 2010.” Trial Ct. Op. at 10.


                                    - 12 -
J. S12038/15


       Appellant’s claim that the Commonwealth failed to prove motive is

meritless. See Robinson, 364 A.2d at 669. Appellant’s contention that the

earrings and watch were not distinctive in unavailing. It is not for this court

to substitute its judgment for that of the fact-finder.   See Ratsamy, 934

A.2d at 1235-36, 1237.       A conviction for first-degree murder can be

sustained based upon circumstantial evidence where a deadly weapon was

used on a vital part of the decedent’s body.     See Ramtahal, 33 A.3d at

607.    We find no relief is due.    See Ratsamy, 934 A.2d at 1235-36;

Widmer, 744 A.2d at 751.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




                                    - 13 -
