J-S51028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

RANDY DIAZ

                             Appellant               No. 3204 EDA 2014


            Appeal from the Judgment of Sentence October 9, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011777-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 26, 2015

        Randy Diaz appeals from the judgment of sentence, imposed in the

Philadelphia Court of Common Pleas, following his convictions for murder in

the first degree,1 conspiracy,2 carrying a firearm without a license,3 carrying

firearm without a license on the streets of Philadelphia,4 and possession of

an instrument of crime (“PIC”). After careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 6106(a)(1).
4
    18 Pa.C.S. § 6108.
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       The underlying facts are as follows. On the evening of December 15,

2011, Diaz, Christopher Martinez and Alex Torres were together in a

schoolyard parking lot with Amanda Cooper and Marcus Jones. Torres and

Diaz were discussing that they had a problem with Juan Cruz because he

owed Torres money for dealing drugs.             Torres, who weighed over 400

pounds, asked Diaz to murder Cruz for him because Torres was too big and

could not move fast enough to murder Cruz himself. Diaz agreed and Torres

provided him with a gun.5

       Torres and some friends, including Jones, drove ahead to look out for

the police, while Martinez, who was driving Diaz’s black BMW with Diaz in

the passenger’s seat, followed behind them.          When they reached Coral

Street, near Frankford Avenue, Diaz told Martinez to stop but to keep the car

running.    Diaz took the gun, exited the vehicle and walked up the block.

Martinez heard four gunshots and a few seconds later Diaz ran back to the

car, jumped in, and yelled for Martinez to drive. Martinez and Diaz drove to

Martinez’s house, where Diaz left Martinez.

       Cooper testified that prior to the shooting she heard Torres tell Diaz

“you better shoot him before he shoots you,” and saw Martinez and Diaz

drive around the block in Diaz’s car. Cooper went into her house and came

out five or ten minutes later, observing that Diaz’s car was parked with the


____________________________________________


5
    Martinez described the gun as a semiautomatic “Glock 9.”



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engine running at the intersection of Coral and Rush Streets. Cooper then

saw Diaz walk out of sight and heard about four to five gunshots from the

area nearby. Cooper then saw Diaz run down the street holding his pocket

and get into the passenger seat of his BMW.       She watched Martinez drive

away and went toward the area where the gunshots were fired.           She saw

Cruz, who was injured.

      That same evening, Jones heard Diaz say that Cruz owed him money

and that if he did not pay Diaz, he was going to kill Cruz. Jones drove away

with Torres, who later received a phone call informing him that Cruz had

been shot.

      On December 15, 2011, at about 6:45 p.m., Police Officer Curt McKee

received a radio call, and was dispatched to 2036 East Auburn Street, where

he found Cruz lying on the ground suffering from multiple gunshot wounds.

Officer McKee placed Cruz into his vehicle and transported him to a nearby

hospital. Id. at 76-77.

      At the scene of the shooting, Detective Gina Chestang recovered five

nine-millimeter cartridge casings and two projectile fragments from the 2800

Block of North Coral Street. According to Officer Raymond Andrejczak, an

expert in ballistics, all five of the cartridge casings recovered from the scene

were fired from the same unrecovered firearm. Both projectiles recovered

from Cruz’s body were nine millimeters.

      On December 18, 2011, at about 10:40 p.m., Police Officer Jill

Kerstetter came into contact with Diaz, who was exiting his black BMW.

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Diaz identified himself as Randy Marshal to Office Kerstetter.           Office

Kerstetter recovered a Daily News article dated December 16, 2011,

regarding the shooting of Cruz, in Diaz’s pocket, and also recovered thirty-

three packets of heroin and cocaine.

       On January 12, 2012, at 12:29 a.m., Cruz died of his injuries.

According to the Medical Examiner, Cruz’s cause of death was multiple

gunshot wounds suffered on December 15, 2011.6

       Trial began on October 6, 2014, and the jury returned its verdict on

October 9, 2014, finding Diaz guilty of the aforementioned offenses.       The

Honorable Barbara A. McDermott sentenced Diaz to an aggregate term of life

imprisonment without the possibility of parole.

       Diaz filed a post-sentence motion on October 14, 2014, asserting that

the verdict was against the weight of the evidence and that the court erred

by admitting evidence related to his involvement in a home invasion prior to

the date of the murder for which he was on trial.       The court denied the

motion the following day.

       Diaz filed a timely notice of appeal on November 13, 2014.         After

receiving an extension, Diaz filed a statement of errors complained of on




____________________________________________


6
  Cruz suffered four gunshot wounds, one to his chest, which hit his heart,
lungs, and spleen, one to his right shoulder, one to his right thigh, and one
to his right calf.



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appeal pursuant to Pa.R.A.P. 1925(b).         The trial court issued its Rule

1925(a) opinion on January 12, 2015.

      On appeal to this Court, Diaz raises the following issues for our review:

      1. Is [Diaz] entitled to an arrest of judgment on all charges,
         where the verdict was not supported by sufficient evidence
         and where the Commonwealth did not prove its case beyond
         a reasonable doubt?

      2. Is [Diaz] entitled to a new trial as the verdict is against the
         greater weight of the evidence?

      3. Is [Diaz] entitled to a new trial as a result of the trial court’s
         error in admitting certain evidence pursuant to [Pennsylvania]
         Rule [of Evidence] 404(b), but where the evidence was not
         admissible pursuant to that Rule nor admissible because of
         Rule 401 and Rule 403?

Appellant’s Brief, at 3.

      Diaz first avers that there was insufficient evidence to establish that he

committed any of the crimes.       Diaz asserts that, while he may have been

present at or near the scene of the crime, the Commonwealth failed to

establish that he was the shooter or that he acted with premeditation or the

specific intent to kill. Diaz contends that because there was no eyewitness

testimony, no confession and no physical evidence connecting him to the

offense, the court lacked sufficient evidence to show he was the shooter or

had the specific intent to kill Diaz.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences



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therefrom, the trier of fact could have found that each and every element of

the   crimes   charged   was    established   beyond    a   reasonable   doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

Moreover, “wholly circumstantial evidence” may support a conviction.

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000).

      “A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). An intentional

killing is a “killing by means of poison, or by lying in wait, or any other kind

of willful, deliberate, and premeditated killing.”     18 Pa.C.S. § 2502(d).

Evidence is sufficient to sustain a conviction for first-degree murder when

the Commonwealth establishes that:        (1) a human being was unlawfully

killed; (2) the accused is responsible for the killing; and (3) the accused

acted with specific intent. Commonwealth v. Chambers, 980 A.2d 35, 44

(Pa. 2009).     The Commonwealth may establish that the defendant

intentionally killed the victim wholly through circumstantial evidence. Id.at

44 (citing Commonwealth v. Rivera, 773 A.2d 131, 135 (Pa. 2001)).

Malice can be inferred from the use of a deadly weapon upon a vital part of

the victim’s body. Commonwealth v. Thomas, 54 A.3d 332, 335-36 (Pa.

2012).

      Diaz asserts that the evidence was insufficient to establish he was a

principal actor, accomplice or conspirator in the murder.      However, there

were three eyewitnesses (Jones, Martinez, and Cooper), who observed Diaz


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explicitly agree to murder Cruz over a drug debt Cruz owed to Torres. N.T.

Trial, 10/7/14, at 137, 141, 230; N.T. Trial, 10/8/14, at 35-37, 167.

Martinez testified that he assisted in the plan by driving Diaz, waiting in the

car while Diaz shot Cruz, and then driving Diaz to safety afterwards. Id. at

138-140. Martinez’s testimony, if believed by the fact-finder, itself provided

sufficient proof that Diaz acted as a principal in the conspiracy to murder

Cruz and possessed the specific intent to do so.           See Commonwealth v.

Wienckowski, 537 A.2d 866, 870 (Pa. Super. 1988) (the uncorroborated

testimony of a prosecution witness can be sufficient to convict if the trier of

facts finds the witness to be credible); Commonwealth v. Boone, 429 A.2d

689, 691 (Pa. Super. 1981) (the testimony of one witness may suffice to

establish the identification of the accused”).7

       Additionally, the physical evidence at the scene of the shooting was

consistent with witnesses’ testimony.            Martinez and Cooper testified that

Diaz fired four or five shots. At the scene, the police recovered five nine-

millimeter fired cartridge casings, which had all been fired by the same gun.

Cruz suffered four gunshot wounds, and two projectiles removed from his

____________________________________________


7
   Martinez’s testimony was corroborated by additional evidence, including
the testimony of Cooper, who overheard the conversation between Diaz and
Torres about murdering Cruz, heard gunshots, saw Diaz’s black BMW drive
away, and found Cruz lying in the street. Jones also was present and
testified that he overheard Diaz discussing Cruz’s drug debt and plans to kill
him. Jones left the parking lot with Torres, who later received a phone call
informing him Cruz had been shot.



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body were nine-millimeters. N.T. Trial, 10/7/14, at 89, 99-101, 104, 212-

14, 218. Accordingly, the Commonwealth established Diaz’s guilt beyond a

reasonable doubt.

      Next, Diaz argues he must be awarded a new trial because the verdict

was against the weight of the evidence, and because the jury had to engage

“in speculation, conjecture and surmise in reaching its verdict,” Appellant’s

Brief, at 6, due to the lack of sufficient evidence connecting him to the

offenses. Diaz contends that, without a confession, physical evidence tying

him to the crime, or an eyewitness who saw him commit the crime, “the jury

went too far in finding [him] guilty and had to engage in rank speculation to

reach [its] verdict.” Id. at 10.

      Weight of the evidence and sufficiency of the evidence are discrete

inquiries.   An argument that the verdict is contrary to the weight of the

evidence concedes that there is sufficient evidence to sustain the verdict but

contends, nevertheless, that the verdict is against the weight of the

evidence. Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002).

An allegation that the verdict is against the weight of the evidence is

addressed to the sound discretion of the trial court.    Commonwealth v.

Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005) (citations omitted).

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). A verdict is

against the weight of the evidence only where the Commonwealth’s evidence

is so fundamentally inconsistent, unreliable, or tenuous that it shocks one’s


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sense of justice to imagine that a factfinder could have credited it and used

it to convict someone.    Commonwealth v. Widmer, 744 A.2d 745 (Pa.

2000).

      Here, Diaz failed to develop his weight of the evidence argument and

cited no relevant case law to discuss or support his claim. Diaz only relies

on case law that fails to distinguish his argument from his sufficiency of the

evidence claim. See Commonwealth v. McClendon, 874 A.2d 1223, 1234

(Pa. Super. 2005) (claim waived where appellant fails to provide relevant

case law and full discussion); Commonwealth v. Sullivan, 864 A.2d 1246

(Pa. Super. 2004) (weight claim waived where appellant argued weight and

sufficiency but did not distinguish between them).

      Moreover, Diaz has failed to challenge whether the trial court abused

its discretion in denying his post trial motion raising a weight of the evidence

claim.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons
         advanced by the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence. One of the least assailable reasons for granting
         or denying a new trial is the lower court's conviction that
         the verdict was or was not against the weight of the



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            evidence and that a new trial should be granted in the
            interest of justice.

          This does not mean that the exercise of discretion by the trial
          court in granting or denying a motion for a new trial based on a
          challenge to the weight of the evidence is unfettered. In
          describing the limits of a trial court's discretion, we have
          explained:

            The term “discretion” imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate conclusion
            within the framework of the law, and is not exercised for
            the purpose of giving effect to the will of the judge.
            Discretion must be exercised on the foundation of reason,
            as opposed to prejudice, personal motivations, caprice or
            arbitrary actions. Discretion is abused where the course
            pursued represents not merely an error of judgment, but
            where the judgment is manifestly unreasonable or where
            the law is not applied or where the record shows that the
            action is a result of partiality, prejudice, bias or ill-will

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

          Because Diaz has failed to establish that the trial court abused its

discretion in denying his weight of the evidence claim, he is not entitled to

relief.

          Lastly, Diaz argues that he should be awarded a new trial because the

trial court erred when it admitted evidence that he had drugs8 in his

possession when he was arrested several days after the shooting.             He

asserts that this evidence was irrelevant to the issue of whether he shot

Cruz and thus should not have been admitted.

____________________________________________


8
 Officer Kerstetter found him in possession of twenty-two blue tinted Ziploc
packets of cocaine and eleven heat-sealed packets of heroin. Appellant’s
Brief, at 10-12.



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      The admissibility of evidence is a matter addressed solely to the

discretion of the trial court, and may not be reversed absent an abuse of

that discretion. Commonwealth v. Begley, 780 A.2d 605, 620 (Pa. 2001).

An abuse of discretion is “not merely an error of judgment; rather, discretion

is abused when the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable or the result of partiality, prejudice,

bias or ill-will, as shown by the evidence of record.”    Commonwealth v.

Busanet, 817 A.2d 1060, 1076 (Pa. 2002).

      Pursuant to Rule of Evidence 404(b)(2), evidence of other crimes may

be admitted as     proof of motive, opportunity, intent, preparation, plan,

knowledge, identity or absence of mistake or accident.

      In Diaz’s Rule 1925(b) statement, Diaz vaguely asserted that the trial

court erred in “permitting extraneous 404(b) evidence in [sic] which was not

particularly relevant and, if relevant, was far outweighed by unfair prejudice.

Moreover, the defense was prejudiced by a lack of fair notice as to the

issue.” Statement of Errors Complained of on Appeal, 12/31/14, at 2. At

trial, Diaz made multiple evidentiary challenges pursuant to Rule 404(b). In

the trial court opinion, Judge McDermott had to speculate as to which of the

rulings Diaz wished to challenge on appeal, and addressed the admission of




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Diaz’s firearm possession into evidence.9 However, in Diaz’s appellate brief,

he complains of the admission of evidence that he possessed drugs at the

time of his arrest that the court should have excluded. Accordingly, the trial

court was deprived of any opportunity to respond to the issue Diaz raises

before us. Because Diaz did not properly preserve his claim, it is waived.

       Even if Diaz had properly preserved his evidentiary challenge, the

claim is meritless. Evidence of other criminal activity is admissible to prove

an accused’s motive for his actions, and to explain the history of the case.

See Pa.R.E. 404(b)(2); Commonwealth v. Reid, 811 A.2d 530, 550 (Pa.

2002) (evidence admissible when it tends to prove, inter alia, motive, as

well as for the purpose of demonstrating the chain or sequence of events

which formed the history of the case and the natural development of the

facts); Commonwealth v. Williams, 936 A.2d 12, 31 (Pa. 2007) (“this

Court has recognized a res gestae exception to Rule 404(b) which allows

admission of other crimes evidence when relevant to furnish the context or

complete story of the events surrounding a crime”).

       Evidence must be “unduly prejudicial” to warrant preclusion, not

merely “harmful to the defendant.” Commonwealth v. Hairston, 84 A.3d
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9
    The only clue Diaz offered in his Rule 1925(b) Statement was his
reference to “a lack of fair notice,” which appeared to refer to evidence that
he was observed in possession of a semi-automatic firearm several weeks
before the shooting. Because of that vague clue, the trial court assumed in
its opinion that the firearms evidence was at issue. Trial Court Opinion,
1/12/15, at 4-8.



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657, 666 (Pa. 2014) (internal citations omitted).    Undue prejudice “is not

simply prejudice in the sense that [the defendant] will be linked to the crime

which he is being prosecuted, for that sort of prejudice is ostensibly the

purpose of all Commonwealth evidence.”       Commonwealth v. Lark, 543

A.2d 491, 499 (Pa. 1988) (emphasis omitted). See also Commonwealth

v. Rigler, 412 A.2d 846, 852 (Pa. 1980) (“all of the prosecution’s evidence

is intended to ‘prejudice’ the jury, and simply because it is damaging to the

defense is no reason to exclude the evidence”).

       Here, evidence of Diaz’s involvement with drug dealing was relevant to

his motive for killing Cruz. As the testimony established, all three witnesses

overheard Diaz discussing with Torres how Cruz owed Torres drug money.

N.T. Trial, 10/7/14, at 35-38; 76-78; 230-50.       Additionally, Diaz never

disputed that he was a drug dealer. There is no reason to believe that the

testimony about Diaz’s drug possession so prejudiced the jury that it was

prevented from making a fair determination as to whether or not Diaz was

guilty of the offenses charged. Accordingly, Diaz’s claim does not entitle him

to relief.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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