J-S29022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH VIRUET                              :
                                               :
                       Appellant               :   No. 3765 EDA 2015

              Appeal from the Judgment of Sentence April 1, 2013
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002423-2011


BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                  FILED JUNE 22, 2018

        Joseph Viruet (Appellant) appeals from the judgment of sentence

entered after a jury convicted him of first-degree murder1 and related

offenses. We affirm.

        The trial court summarized the facts as follows:

           On the night of January 17, 2009, Angel Padilla (the victim),
        Robert Mokshefsky (Mokshefsky), Humberto Venerio (Venerio),
        and Michael Rodriguez (Rodriguez) were on the corner of A and
        Westmoreland Streets [in Philadelphia], selling marijuana.
        [Appellant] showed up to the area . . . around 10:00 or 11:00
        P.M.[,] engaged in conversation [with the victim and] inquired
        about a missing chain necklace. [Appellant] and the victim . . .
        also argued over money that the victim allegedly owed [Appellant.
        Appellant] left, and the group carried on with selling their
        marijuana.

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* Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 2502(a).
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          At around 2:00 A.M., the group was standing on the corner . . .
      of Ella and Westmoreland Streets, when shots were fired in their
      direction by [Appellant]. The victim was hit first, and Mokshefsky
      tried to cover him with his arms. As a result, Mokshefsky was
      shot in the wrist and the elbow. Rodriguez and Venerio took off
      running; when they realized that Mokshefsky had fallen, they
      doubled back to pick him up, and continued running.

      . . . Venerio called the police. . . . Mokshefsky was taken by
      ambulance to [the h]ospital, where he learned that the victim had
      been killed. Meanwhile, Rodriguez and Venerio returned to A and
      Westmoreland Streets, where they learned that the victim had
      been shot and killed. Rodriguez and Venerio were then taken by
      police to the Homicide Unit in separate cars.

Trial Court Opinion, 3/31/16, at 2-3 (citations to trial notes of testimony and

footnotes omitted).

      On that same night and early morning hours of January 18, 2009,

Rodriguez and Venerio gave statements to police. They both stated that a

man named “Ace,” along with his friend, purchased marijuana from the victim

but were unhappy with the quantity.        Rodriguez stated that five to eight

minutes after Ace and his friend left, he heard gunshots and saw Ace’s friend

shooting at them. Rodriguez was shown a photograph of Ferdinand Robles

and identified him as Ace; Rodriguez also identified Louis Hernandez in a photo

array as the shooter.    Meanwhile, Venerio told police that about fifteen

minutes after the marijuana sale to Ace and his friend, the two men returned

to the corner, and Ace’s friend shot at them. Venerio likewise identified Louis

Hernandez as the shooter in a photo array.

      The next day, January 19, 2009, however, Rodriguez gave a second

statement to police, claiming that he made a mistake regarding the identity

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of the shooter and that he did not know who the shooter was. Venerio also

gave a second statement, admitting “that everything he had previously told

police about Ace and his friend, Louis Hernandez . . . was false.” Trial Court

Opinion, 3/31/16, at 10. Venerio stated that he “thought” Appellant, whom

he had known for a few years, was the shooter, and identified him in a

photograph. Id.

      Also on January 19, 2009, Mokshefsky — who was shot in the wrist and

elbow — told police that at around 10:00 or 11:00 p.m. on the night of the

shooting, Appellant — whom he had known for three to four years — argued

with the victim about a debt owed to Appellant. Mokshefsky further stated

that sometime after 1:00 a.m., a customer had argued with the victim about

the amount of marijuana purchased. The customer left in a car, but within

two to four minutes, a person wearing all black shot at the group. Mokshefsky

did not know the customer and was not sure if the customer was the shooter.

      Approximately six months later, on July 15, 2009, Venerio gave a third

statement to police, stating that he was not truthful when he said he was “not

sure” if Appellant was the shooter, and instead, he was sure that it was

Appellant. Id. at 10. Venerio explained that he previously said he was “not

sure” because he did not want to put himself or his family in danger, because

Appellant knew where he lived. On July 21, 2009, Rodriguez likewise gave a

third statement to police in which identified Appellant as the shooter.

Rodriguez stated that he did not previously identify Appellant out of fear. On


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August 21, 2009, Mokshefsky gave a second statement to police, also

identifying Appellant as the shooter and explaining that he did not previously

provide this information because he did not want to put himself in jeopardy.

        Appellant was charged with first-degree murder and related offenses.

The case proceeded to a jury trial in November 2012, and ended in a mistrial

after the jury was unable to reach a verdict. See Appellant’s Brief at 5.2

        The case proceeded to a second jury trial on March 26, 2013.          The

Commonwealth called Rodriguez, Venerio, and Mokshefsky as witnesses.

Rodriguez testified that he and Appellant “grew up together,” but denied

seeing him on the day of the shooting. N.T. Trial, 3/27/13, at 77-78. The

Commonwealth asked Rodriguez if he could see the shooter, and Rodriguez

responded, “Kind of yeah,” but the Commonwealth did not ask him any further

questions regarding the appearance or identity of the shooter.3 Id. at 79.

Venerio and Mokshefsky each stated that they could not see the shooter. Id.

at 128, 192. The Commonwealth confronted all three witnesses with their

prior statements to police. Rodriguez and Venerio each agreed that they had



____________________________________________


2   The certified record does not include any information about the first trial.

3 The trial court opinion stated that Rodriguez “identified [Appellant] in court
as the shooter.” Trial Court Opinion, 3/31/16, at 9, citing N.T. Trial, 3/27/13,
at 98. We note our agreement with Appellant that Rodriguez made no such
statement. See Appellant’s Brief at 9 n.1. Instead, at trial, Rodriguez
identified Appellant in court as the person he had named as the shooter in his
July 21, 2009 statement — a statement that he was disavowing at trial. N.T.,
3/27/13, at 97-98.

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provided the responses in all three statements as read aloud by the

prosecutor.    Id. at 83-105 (Rodriguez), 131-174 (Venerio).        Furthermore,

Rodriguez conceded that he “lie[d] on at least one of the” statements, but the

Commonwealth did not question him further.            Id. at 111. Finally, both

Rodriguez and Venerio testified that they did not want to be at the trial. Id.

at 106, 175.

      Mokshefsky testified that he could not recall whether he made the

statements that were memorialized in his January 19, 2009 statement (in

which he stated that he was “not sure” if the disgruntled customer was the

shooter), but acknowledged that the signature on the statement was his. Id.

at 195-216. When confronted with his August 21, 2009 statement, however,

Mokshefsky, denied that he had stated Appellant was the shooter, and denied

that he signed the signature that was attributed to him. Id. at 217, 219.

      Furthermore, we note Philadelphia Police Detective Joseph Bamberski’s

testimony that based on Rodriguez’s and Venerio’s initial statements that

Louis Hernandez was the shooter, an arrest warrant was issued for Hernandez.

However, the detectives subsequently learned that Hernandez had been court-

committed to a school institution since 2007, and therefore could not have

committed the shooting on January 17, 2009. Pertinently, Rodriguez, Venerio,

and Mokshefsky acknowledged that they had previously told police that

Appellant     was   the   shooter,   but   recanted   those   statements.   The

Commonwealth then introduced those prior statements as evidence.


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        On April 1, 2013, the jury found Appellant guilty of first-degree murder,

possessing an instrument of crime, aggravated assault, and carrying a firearm

in Philadelphia.4 The same day, the trial court imposed an aggregate sentence

of life imprisonment without parole and a consecutive 1 to 5 years’

imprisonment.

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

He then filed a notice of appeal on September 5, 2013.5 Appellant presents

one issue for our review:

        Was the evidence insufficient as a matter of law to sustain the
        verdict where it was based solely on evidence of unsworn, out-of-
        court prior inconsistent statements, a violation of the Due Process
        Clause of the Fourteenth Amendment to the United States
____________________________________________


4   18 Pa.C.S.A. §§ 907, 2702(a), and 6108.

5  We note the delay since the initial September 5, 2013 notice of appeal.
Appellant’s appeal was initially docketed at 3151 EDA 2013, but this Court
dismissed it due to the failure of his counsel, Carmella Jacquinto, Esquire, to
file a brief. On November 6, 2015, the trial court reinstated Appellant’s direct
appeal rights nunc pro tunc and he filed a timely notice of appeal in the present
docket, 3765 EDA 2015. Despite being granted five extensions of time to file
an appellate brief, Attorney Jacquinto ultimately advised this Court that she
was unable to continue representing Appellant, and then failed to comply with
this Court’s order to withdraw her appearance. Thus, on May 26, 2017, this
Court directed that Attorney Jacquinto be removed as counsel. On remand,
the trial court appointed another attorney to represent Appellant, but at some
point thereafter appointed present counsel, Daniel Silverman, Esquire. This
Court granted counsel’s request to remand this case so that he could file a
supplemental Pa.R.A.P. 1925(b) statement.           On September 18, 2017,
Attorney Silverman filed the supplemental statement, which argued, inter alia,
that the evidence was insufficient to sustain the verdicts. Attorney Silverman
timely filed a brief with this Court, and the Commonwealth, after receiving
four extensions of time, filed an appellee’s brief on April 6, 2018.




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       Constitution?

Appellant’s Brief at 3.6

       In its Pa.R.A.P. 1925(a) opinion, the trial court rejected Appellant’s

argument that a criminal conviction cannot be based solely on prior

inconsistent statements. The trial court cited Commonwealth v. Brown, 52

A.3d 1139 (Pa. 2012), which held “that admissible prior inconsistent

statements must be considered by a reviewing court in the same manner as

any other type of validly admitted evidence when evaluating a sufficiency of

the evidence claim.” Trial Court Supplemental Opinion, 9/28/17, at 3.

       Appellant nonetheless emphasizes that because no witness testified at

trial that Appellant committed any crime, his conviction was based solely on

three witnesses’ out-of-court statements, which were expressly disavowed at

trial. Appellant further stresses that the Commonwealth did not present any

evidence as to which of each witnesses’ prior inconsistent statements was

valid or truthful. Appellant argues that his federal due process rights were

violated   because     the    out-of-court     statements   were   unsworn   written

statements and not subject to cross-examination. Appellant concedes that in

Brown, our Supreme Court held that due process is not violated when a

conviction is based solely on out-of-court statements that are recanted at trial.


____________________________________________


6 While Appellant did not raise a sufficiency challenge in his post-trial motion,
“[u]nder Pa.R.Crim.P. 606(A)(7), a defendant is entitled to raise the issue of
sufficiency for the first time on appeal.” See Commonwealth v. Wright,
832 A.2d 1104, 1110 (Pa. Super. 2003).

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However, Appellant asserts that “Brown was wrongly decided” and “[t]he

overwhelming majority of state courts” have adopted a per se rule that a prior

inconsistent statement, which is recanted at trial, alone is not sufficient to

support a conviction.   Appellant’s Brief at 11-13 (citing cases).   Appellant

acknowledges that “this Court does not have the authority to refuse to follow

Supreme Court precedent”, but urges us to issue a decision in which we “invite

the Supreme Court” to revisit its decision in Brown. Id. at 13.

      We are mindful that “[a] question regarding whether a due process

violation occurred is a question of law for which the standard of review is de

novo and the scope of review is plenary.” Commonwealth v. Smith, 131

A.3d 467, 472 (Pa. 2015), citing Brown, 52 A.3d at 1162. Further, Brown

remains good law in Pennsylvania. See Commonwealth v. Brown, 134 A.3d

1097, 1104 (Pa. Super. 2016) (citing Brown to hold that the jury was free to

credit witnesses’ prior inconsistent statements given to police over their

recantations at trial); Commonwealth v. Lofton, 57 A.3d 1270, 1275 (Pa.

Super. 2012) (citing Brown to hold “jury was clearly apprised of the

discrepancies between the” two witnesses’ out-of-court statements and

inconsistent in-court testimony and was free to reject the in-court testimony

and accept the veracity of the out-of-court statements).

      In Brown, three eyewitnesses told police that they saw the defendant,

Brown, shooting at a group of three men, two of whom died. Brown, 52 A.3d

at 1144-46. At the jury trial, however, the three witnesses disavowed their


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prior statements to police. Id. at 1148-50 & n.6. Nevertheless, the jury found

the defendant guilty of two counts of first-degree murder. Id. at 1150. On

appeal, the defendant challenged the sufficiency of the evidence, arguing that

his convictions, which were supported solely by out-of-court statements that

were recanted at trial, violated the federal and Pennsylvania due process

clauses. Id. at 1153. Our Supreme Court denied relief on this issue, holding:

      [A] conviction which rests solely on the prior inconsistent
      statements of witnesses who testify at trial, where such
      statements were properly admitted, but recanted at trial, does not
      offend due process[,] provided the makers of such statements
      have been made available for cross examination, and, based on
      the content of the statements as a whole, a finder-of-fact could
      reasonably find that every element of the offense or offenses
      charged has been proven beyond a reasonable doubt.

Id. at 1184.

      Based on the above authority, we hold that the trial court did not err in

relying on Brown to deny Appellant relief on his due process and sufficiency

argument. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/18




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