J-S67028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

ADAMIS ARIAS

                             Appellant                       No. 1975 MDA 2014


            Appeal from the Judgment of Sentence October 14, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001414-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                                  FILED JANUARY 22, 2016

        Appellant, Adamis Arias, appeals from the judgment of sentence

entered October 14, 2014, in the Court of Common Pleas of Luzerne County.

No relief is due.

        On February 25, 2013, Arias was arrested for the shooting death of

the    victim,   Angel      Villalobos,   in   Hazleton,   Pennsylvania.   At    trial,

Commonwealth witness Rafael Santana Nunez1 testified that on February 23,

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*
    Retired Senior Judge assigned to the Superior Court.
1
  As will be discussed below, Nunez initially failed to appear to testify despite
the numerous efforts of police to secure his presence at trial. Over defense
objection, the trial court declared Nunez to be an unavailable witness under
Pa.R.E. 804(b)(1) and permitted the Commonwealth to read into evidence
Nunez’s preliminary hearing testimony. When Nunez appeared the following
day willing to testify, the trial court ordered that the preliminary hearing
testimony be stricken from the record and Nunez proceeded to testify.
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2013, he observed Arias, who was waiving a firearm, confront the victim on

West Maple Street and ask where his money was. See N.T., Trial, 8/12/14

at 545-46. Nunez testified that he then heard Arias fire his firearm at the

victim, who was shot in the back. See id. at 547-48. Nunez later identified

Arias as the shooter from a police lineup. See id. at 549.

      Dr. Gary Ross, who conducted the autopsy on the victim, was qualified

as an expert in the field of forensic pathology. Dr. Ross testified that the

victim sustained two gunshot wounds. Dr. Ross opined that the first bullet

entered the victim’s back near his lower spine, and would have caused the

victim to fall to the ground. See id. at 493. Over defense objection, Dr.

Ross testified that the second bullet, which entered near the victim’s pelvis,

was fired while the victim was lying on his back. See id. at 497-98; 501-02.

      A jury convicted Arias of third degree murder.          The trial court

sentenced Arias to a term of twenty to forty years in prison. Arias filed a

motion for reconsideration of sentence, which the trial court denied.      This

timely appeal followed.

      Arias raises the following issues for our review.

      A. Whether the [c]ourt erred in allowing the Commonwealth to
         read into evidence the testimony of Rafael Santana Nunez
         from the Preliminary Hearing in that the Commonwealth did
         not establish that the witness was unavailable under Rule
         804(a) and because [Arias] was not allowed to cross-examine
         the witness on his credibility at the Preliminary Hearing?

      B. Whether the [t]rial [c]ourt erred in allowing the testimony of
         Dr. Gary Ross as to the location of the shooter at the time the
         second bullet was fired in that said testimony was beyond the
         scope of his expert forensic pathology report and outside his

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           expertise as a physician in that said testimony involved
           expert knowledge of bullet trajectories, velocities, calibers of
           guns and types of bullets?

Appellant’s Brief at 4.

      Arias first argues that the trial court erred in permitting the

Commonwealth to enter into evidence the preliminary hearing testimony of

witness Rafael Santana Nunez, whom the trial court had determined to be an

unavailable witness pursuant to Pa.R.E. 804(b)(1).           We note that the

“[a]dmission of evidence is within the sound discretion of the trial court and

will be reversed only upon a showing that the trial court clearly abused its

discretion.”   Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super.

2015) (citation omitted). “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Ali, 112 A.3d 1210, 1217 (Pa. Super. 2015) (citation

omitted), appeal granted in part by, --- A.3d ----, 2015 WL 7763727 (Pa.

Dec. 2, 2015).

      The Pennsylvania Rules of Evidence state that the following statements

are not excluded by the hearsay rule if the declarant is unavailable as a

witness.

      Testimony given as a witness at another hearing of the same or
      a different proceeding, or in a deposition taken in compliance
      with law in the course of the same or another proceeding, if the
      party against whom the testimony is now offered, or, in a civil
      action or proceeding, a predecessor in interest, had an adequate


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     opportunity and similar motive to develop the testimony by
     direct, cross, or redirect examination.

Pa.R.E., Rule 804(b)(1).

     Instantly, our review of the record reveals that although the trial court

permitted the Commonwealth to read into evidence the witness’s preliminary

hearing testimony after Nunez failed to arrive in court to testify, Nunez

appeared willing to testify the following day. Although the Commonwealth

initially opposed calling Nunez as a witness, defense counsel moved to have

Nunez’s former testimony stricken from the record. See N.T., Trial, 8/12/14

at 530. The trial court ultimately granted the defense motion to strike the

preliminary hearing testimony from the record and instructed the jury to

disregard the portion of Nunez’s testimony that the Commonwealth read into

the record the previous day.      See id. at 537, 541-542.       Nunez then

proceeded to testify in person and was subject to cross-examination by

defense counsel. See id. at 543-573.

     We find that Arias’s challenge to        the introduction of Nunez’s

preliminary hearing was rendered moot when the trial court granted defense

counsel’s motion to strike the testimony from the record. Defense counsel

was afforded a full and fair opportunity to cross-examine the witness. We

further find that the trial court’s cautionary instruction to the jury to

disregard the former testimony sufficiently cured any potential prejudice that

may have arisen from the introduction of the preliminary hearing testimony.

See Commonwealth v. Miller, 819 A.2d 504, 513 (Pa. 2002) (“[T]he




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law presumes that the jury will follow the instructions of the court.”).

Accordingly, this claim is without merit.

        Lastly, Arias contends that the trial court erred when it permitted

examining forensic physician, Dr. Ross, to offer an expert opinion as to the

location of the shooter at the time the second bullet was fired.                See

Appellant’s Brief at 25.2 Arias does not cite any case law in support of his

proposition that Dr. Ross was unqualified to offer such an opinion.

        Contrary to Arias’s assertion otherwise, we have long held that “[a]

physician who examines the gunshot wounds suffered by a decedent may

give his opinion regarding the direction and distance from which such

wounds were inflicted though that physician is not qualified as a ballistics

expert.”     Commonwealth v. Guess, 416 A.2d 1094, 1096 (Pa. Super.

1979) (citing Commonwealth v. Gonzales, 345 A.2d 691 (Pa. 1975)).

Here, Dr. Ross was an expert in forensic pathology who conducted the


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2
    Pa.R.E. 702 governs the permissibility of expert testimony.

        If scientific, technical or other specialized knowledge   beyond that
        possessed by a layperson will assist the trier             of fact to
        understand the evidence or to determine a fact            in issue, a
        witness qualified as an expert by knowledge, skill,       experience,
        training or education may testify thereto in the          form of an
        opinion or otherwise.

Pa.R.E. 702.




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autopsy of the victim.    We therefore find the opinion offered by Dr. Ross

regarding the direction from which the second shot was fired was within his

area of expertise. See, e.g., Commonwealth v. Mollett, 5 A.3d 291, 305

(Pa. Super. 2010) (finding it was within former medical examiner’s area of

expertise to testify to position of decedent prior to being shot). Accordingly,

the admission of this testimony was not in error.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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