J-A04009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESUS GARCIA                               :
                                               :
                       Appellant               :   No. 2573 EDA 2018

        Appeal from the Judgment of Sentence Entered August 22, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012694-2015


BEFORE:      PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                              FILED JUNE 08, 2020

        Jesus Garcia appeals from the judgment of sentence, entered on August

22, 2018, of an aggregate term of 21 to 42 years’ imprisonment, in the Court

of Common Pleas of Philadelphia County, after a jury convicted him of one

count each of murder in the third degree and abuse of a corpse.1 On appeal,

Appellant claims the trial court erred by admitting evidence regarding his cell

phone activity in the hours following the murder and by failing to charge the

jury on voluntary and involuntary manslaughter.2        After review, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c) and 5510, respectively.

2
 On appeal, Appellant abandons the claim the trial court erred in denying his
motion to suppress raised in his Rule 1925(b) statement.
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      Appellant lived with Maria Santiago and her children. Maria would call

her mother, Luz, at least once every day. However, Luz last spoke with Maria

on Friday, December 5, 2014. Similarly, Maria’s daughter did not hear from

her mother after December 5.

      Maria’s daughter attempted to call her mother multiple times on

December 6 but was never able to reach her. Twice Appellant answered

Maria’s phone, and informed her daughter that Maria was out Christmas

shopping. When her mother still had not returned any of her calls on December

7, Maria’s daughter informed Maria’s mother of the loss of contact.

      Maria’s mother drove to Maria’s home and found it in disarray. This was

unusual, as Maria kept her home very ordered for her autistic son. Now very

concerned, Maria’s mother took pictures of the house and reported her

daughter missing.

      Philadelphia police opened a missing person investigation. When officers

searched her house, they became highly concerned, noting broken windows,

dented drywall, and drag marks leading out the front door. They also

discovered that Maria’s car was missing.

      The officers used the OnStar service to locate Maria’s car at a motel in

Maple Shade, New Jersey. When Maple Shade police responded to the scene,

they found the car empty. The motel clerk informed the officers that Appellant

had rented a room there.




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      Officers interviewed Appellant and found him to be confused and

somewhat befuddled. He stated that Maria had left with another female, but

had not come back yet. Appellant knew that it was Sunday, but had no

recollection of Saturday. Officers believed he was intoxicated.

      A search of the motel room revealed that it also was in extreme disarray,

but Maria was not present. The keys to Maria’s car were found on the floor,

and officers used them to discover Maria’s decomposing body in the trunk of

her car, bound and wrapped in blankets. White paint was found on her body.

      Officers then searched Appellant and found heroin and cocaine. While

driving him to the police station, Appellant was hysterical and cried

uncontrollably. While in his cell, he vomited through the night.

      Dr. Ian Hood, Chief Medical Examiner of Burlington County, New Jersey,

performed on autopsy on Maria. He opined that Maria had been killed in the

early morning of December 6, and her body had been stored somewhere with

a temperature over seventy degrees. There were no medical indications of a

struggle, but some of the stones from her jewelry were missing. Other than

an extremely low level of alcohol, which may have been caused by

decomposition, there was no evidence of any drugs in her system.

      Under the circumstances, Dr. Hood could not rule out asphyxia as a

cause of death. As a result, he ruled Maria’s death a homicide by unspecified

means.




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     Forensic evidence placed Maria’s and Appellant’s cell phones in close

proximity through the night of December 5 into the early morning of December

6. Maria’s phone was used in the area of her home to answer three calls on

the afternoon of December 6.

     Appellant deleted Maria as a contact on his phone at 12:46 a.m. on

Saturday, December 6. After receiving a text from Maria’s daughter, he

deleted her daughter as a contact. He deleted another contact after it called

him six times on Sunday morning.

     Important to Appellant’s issues on appeal, the phone was used to search

pornographic websites during the morning of December 6.

     Maria’s neighbors testified at trial that they heard Maria and Appellant

arguing at about 9:30 p.m. on December 5. The argument was loud, and they

heard hammering and wood breaking. At some point during the argument,

they heard glass breaking.

     One neighbor spoke with Appellant on the porch of Maria’s house on

December 6. She saw no paint or splatter marks. However, she observed paint

and splatter marks on Maria’s porch on December 7.

     The neighbors noted that Maria’s car was parked in front of their home

in the early morning of December 7. However, it was gone by noon.

     Appellant presented expert testimony that suggested that Maria died

from a drug overdose and that Appellant had merely attempted to dispose of

the body.


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       After he was sentenced, Appellant did not file any post-sentence

motions, but did file this timely appeal. Both he and the trial court complied

with the dictates of Pa.R.A.P. 1925.

       On June 12, 2018, a jury found Appellant guilty of the aforementioned

offenses. The trial court sentenced Appellant as delineated above on August

22, 2018. Appellant did not file any post-sentence motions. On September 6,

2018, Appellant filed a timely notice of appeal.3

       In his first issue on appeal, Appellant complains the trial court erred in

admitting the testimony of Detective Sarah Hyde regarding his use of a cell

phone to search pornographic websites in the hours following Maria’s death

but before he moved her body. See Appellant’s Brief, at 16-21. Specifically,

Appellant claims the evidence was irrelevant, highly prejudicial, and admitted

in violation of Pa.R.E. 403 and 404(b). See id. at 14, 16-21. We disagree.

       Our standard of review is settled:

       With regard to evidentiary challenges, it is well established that
       [t]he admissibility of evidence is at the discretion of the trial court
       and only a showing of an abuse of that discretion, and resulting
       prejudice, constitutes reversible error. 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. Furthermore, if in
       reaching a conclusion the trial court overrides or misapplies the


____________________________________________

3
  On December 12, 2018, pursuant to the trial court’s order, Appellant filed a
concise statement of errors complained of on appeal. On January 3, 2019, the
trial court filed an opinion.


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      law, discretion is then abused and it is the duty of the appellate
      court to correct the error.

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation

and quotation marks omitted).

      Initially, to the extent Appellant contends Detective Hyde’s testimony

was improperly admitted Rule 404(b) evidence and was irrelevant, he waived

the claims. Rule 404(b) provides in pertinent part:

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person's character in order to show that
      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

In contrast, Pennsylvania Rule of Evidence 403 provides in pertinent part:

      The court may exclude relevant evidence if its probative value is
      outweighed by a danger of one or more of the following: unfair
      prejudice, confusing the issues, misleading the jury, undue delay,
      wasting time, or needlessly presenting cumulative evidence.

       “Unfair prejudice” means a tendency to suggest decision on an
      improper basis or to divert the jury’s attention away from its duty
      of weighing the evidence impartially.

Pa.R.E. 403.

      Our review of the record demonstrates Appellant only objected to the

admission of the evidence on the ground of unfair prejudice and never raised

the issues of irrelevancy or a violation of Rule 404(b). See N.T. Trial, 6/06/18,

at 197.

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      “Where a specific objection is interposed, other possible grounds for the

objection are waived.” Commonwealth v. Shank, 883 A.2d 658, 672 (Pa.

Super. 2005) (citation omitted). Because Appellant did not object to the

admission of the evidence on the grounds of irrelevancy or as a violation of

Rule 404(b), he waived these claims. See id. at 672.

      Moreover, Appellant did not raise these claims in his Rule 1925(b)

statement, wherein he only argued, “the prejudicial effect of such evidence

far outweighed any probative value.”        Supplemental Statement of Errors

Complained of on Appeal, 12/12/18, at unnumbered page 2. Because of this,

the trial court did not address these claims in its Rule 1925(a) opinion. See

Trial Court Opinion, 1/3/19, at 18.

      As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925

provides that issues that are not included in the Rule 1925(b) statement or

raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Heggins, 809 A.2d 908, 911

(Pa. Super. 2002) (“[A Rule 1925(b)] [s]tatement which is too vague to allow

the court to identify the issues raised on appeal is the functional equivalent to

no [c]oncise [s]tatement at all.”); Commonwealth v. Lord, 719 A.2d 306,

308 (Pa. 1998), superseded by rule on other grounds as stated in




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Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Thus,

Appellant waived his relevancy and Rule 404(b) claims for this reason as well.4

       Appellant claims the admission of the evidence violated Rule 403

because it was unfairly prejudicial.5 We disagree.

       A court may exclude evidence if the probative value is outweighed by

the danger of unfair prejudice. See Pa.R.E. 403. However, “[e]vidence is not

unfairly prejudicial simply because it is harmful to the defendant’s case.”

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009) (citation

omitted). Our Supreme Court has stated a trial court is not “required to

sanitize the trial to eliminate all unpleasant facts from the jury’s consideration

where those facts are relevant to the issues at hand and form part of the

history and natural development of the events and offenses for which the

defendant is charged.” Commonwealth v. Lark, 543 A.2d 491, 501 (Pa.



____________________________________________

4
  In any event, we are not persuaded by Appellant’s almost total reliance on
Rule 404(b) and case law discussing prior bad acts evidence in its argument.
Appellant’s Brief, at 18-20. Rule 404(b) concerns the admission of evidence
of prior acts or crimes which are not part of the crime at issue. Here, as noted
above, the evidence in question concerned Appellant’s activities immediately
following Maria’s death but prior to his moving of the Maria’s body. As such it
was res gestae evidence. See Commonwealth v. King, 959 A.2d 405, 417
n.3 (Pa. Super. 2008). The evidence was therefore highly probative of
Appellant’s state of mind at the time of Maria’s death and was admissible. See
id. at 417.

5
 It is not entirely clear defense counsel properly preserved this claim for our
review as she appeared to agree with the trial court’s ruling at the time. N.T.
Trial, 6/08/18, at 68-69. However, because the record is equivocal, we will
address the claim on the merits.

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1988); see also Page, 965 A.2d at 1220. Exclusion of evidence on the

grounds it is prejudicial is “limited to evidence so prejudicial that it would

inflame the jury to make a decision based upon something other than the legal

propositions relevant to the case.” Commonwealth v. Foley, 38 A.3d 882,

891 (Pa. Super. 2012).

      Here, we agree with the trial court and the Commonwealth, the evidence

Appellant viewed pornography on his phone immediately following the murder

was part of the history and development of the events, and probative both of

his state of mind and to rebut his defense he was in a cocaine-induced

delirium. The Commonwealth charged Appellant with murder in the third

degree. Our Supreme Court has stated:

      Regarding third degree murder . . . the statute simply states, “All
      other kinds of murder shall be murder of the third degree.” [18
      Pa.C.S.A.] § 2502(c). Importantly, § 2502(c) does not set forth
      the requisite mens rea for third degree murder; however, § 302(c)
      of the Crimes Code provides, “When the culpability sufficient to
      establish a material element of an offense is not prescribed by
      law, such element is established if a person acts intentionally,
      knowingly or recklessly with respect thereto.” Id., § 302(c)
      (emphasis added).

      Case law has further defined the elements of third degree murder,
      holding:

            [T]o convict a defendant of the offense of
            third[ ]degree murder, the Commonwealth need only
            prove that the defendant killed another person with
            malice aforethought. This Court has long held that
            malice comprehends not only a particular ill-will,
            but . . . [also a] wickedness of disposition, hardness
            of heart, recklessness of consequences, and a mind
            regardless of social duty, although a particular person
            may not be intended to be injured.

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      This Court has further noted:

            [T]hird degree murder is not a homicide that the
            Commonwealth must prove was committed with
            malice and without a specific intent to kill. Instead, it
            is a homicide that the Commonwealth must prove was
            committed with malice, but one with respect to which
            the Commonwealth need not prove, nor even address,
            the presence or absence of a specific intent to kill.
            Indeed, to convict a defendant for third degree
            murder, the jury need not consider whether the
            defendant had a specific intent to kill, nor make any
            finding with respect thereto.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (some citations

omitted). Malice can be inferred from the totality of the circumstances.

Commonwealth v. Windslowe, 158 A.3d 698, 709 (Pa. Super. 2017).

      Here, because of the particular and peculiar circumstances of this case,

where the decomposed remains of Maria made it exceedingly difficult to prove

the means of death, and where there were no witnesses to the crime, the

Commonwealth had to prove malice through the totality of the circumstances.

Our Supreme Court has held a jury can infer malice from actions taken after

the victim’s death. See Commonwealth v. Boyd, 334 A.2d 610, 614 (Pa.

1975) (holding jury was entitled to infer malice from defendant’s failure to

seek aid for victim after he shot her). Evidence that Appellant, in the hours

immediately following the homicide, sat in Maria’s residence, while her body

decomposed, and watched pornography on his cellular phone, was probative

of malice and thus, the trial court properly admitted it.




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      Moreover, the trial court properly admitted the evidence to rebut

Appellant’s defense. Despite Appellant’s protestations to the contrary on

appeal, see Appellant’s Brief, at 14-15, his defense at trial was, “while

[Appellant] was in a drug induced stupor, he discovered [Maria’s body]. And

then he panicked, and in an incredibly irrational moment, he put her in the

trunk, he destroyed the house, he fled to New Jersey. . . .” N.T. Trial, 6/05/18,

at 172; see also N.T. Trial 6/06/18, at 120-21 (defense counsel elicited

testimony from Commonwealth’s expert on whether destruction of house was

consistent with person acting in state of drug-induced delirium); id. at 161

(confirming Appellant’s prior history of drug-induced delirium); N.T. Trial

6/07/18, at 103 (confirming police confiscated drugs from Appellant’s person

at time of arrest); and N.T. Trial, 6/11/18, at 27 (testimony from defense

expert discussing whether viewing pornography was inconsistent with being

in drug-induced delirium).

      Under these circumstances, testimony that for approximately one hour

after the murder Appellant watched internet pornography was certainly

probative of his mental state. See Commonwealth v. Gelber, 594 A.2d 672,

680 (Pa. Super. 1991) (holding defendant’s history of drug dealing properly

introduced to rebut self-defense claim and show defendant killed dealer to

obtain drug for resale).

      Furthermore, the probative value of the evidence is not outweighed by

a danger of unfair prejudice. Pa.R.E. 403. Detective Hyde’s testimony was


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brief, factual, and in chronological order. N.T. Trial, 6/08/18, at 100-22. She

discussed all of Appellant’s cellphone activity from the period immediately

preceding the murder on December 6, 2014 through the following morning,

December 7, 2014, giving no particular emphasis to any part of the activity.

While describing the websites in question as appearing to be “pornographic,”

Id. at 107, and noting some were live-stream sites, she did not otherwise

describe them. Id. at 107, 108-11, 113, 120-22. The Commonwealth did not

show the jury any of the actual streams or websites Appellant watched and

did not elicit any descriptions of what the websites contained. See id.

      The testimony in question elicited factual information—Appellant viewed

pornography during a one hour period following the death of Maria then

viewed it again some hours later—nothing more. Given this, we cannot say

this dry recitation was more prejudicial than probative particularly in light of

the graphic testimony about Appellant’s role in destroying the victim’s

residence and rendering her body in a decomposed condition. Therefore, we

reject Appellant’s claim this evidence was unfairly prejudicial, and conclude

the jury was properly permitted to hear the evidence of Appellant’s cell phone

activity and draw its own inferences. See Lark, supra 543 A.2d at 501; Page,

965 A.2d at 1220.

      In his second and final claim, Appellant contends the trial court erred in

failing to instruct the jury on voluntary and involuntary manslaughter. See

Appellant’s Brief, at 21-30. We disagree.


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     We briefly note:

     In reviewing a jury charge, we determine whether the trial court
     committed a clear abuse of discretion or an error of law which
     controlled the outcome of the case. We must view the charge as
     a whole; the trial court is free to use its own form of expression
     in creating the charge. A trial court has broad discretion in
     phrasing its instructions, and may choose its own wording so long
     as the law is clearly, adequately, and accurately presented to the
     jury for its consideration. Moreover, it is well-settled that the trial
     court has wide discretion in fashioning jury instructions. The trial
     court is not required to give every charge that is requested by the
     parties[,] and its refusal to give a requested charge does not
     require reversal unless the appellant was prejudiced by that
     refusal.

Commonwealth v. Williams, 176 A.3d 298, 314 (Pa. Super. 2017)

(quotation marks and citations omitted), appeal denied, 187 A.3d 908 (Pa.

2018).

     Here, the trial court did not err in finding the instruction for voluntary

manslaughter was not warranted. A trial court should instruct as to “heat of

passion” voluntary manslaughter “only where the offense is at issue and the

evidence would support such a verdict.” Commonwealth v. Sanchez, 82

A.3d 943, 979 (Pa. 2013) (citations omitted). Further, “[a]n objective

standard is applied to determine whether the provocation was sufficient to

support the defense of . . . voluntary manslaughter. The ultimate test for

adequate provocation remains whether a reasonable man, confronted with

this series of events, became impassioned to the extent that his mind was

incapable of cool reflection.” Commonwealth v. Miller, 987 A.2d 638, 649-

650 (Pa. 2009).


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      Thus, to support a voluntary manslaughter verdict, “the evidence would

have had to demonstrate that, at the time of the killing, [a]ppellant acted

under a sudden and intense passion resulting from serious provocation by the

victim.”    Id. (citation omitted) (alteration in original) (emphasis added).

Again, we will reverse a trial court’s decision to deny a requested jury

instruction “only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation

omitted).

      Here, while there was evidence Appellant destroyed Maria’s home, both

the Commonwealth’s expert Dr. Hood and the defense expert, Dr. Wetli

testified the condition of the home was not consistent with a violent struggle

but was consistent with a single individual acting in a drug-induced delirium.

N.T. Trial, 6/06/18, at 120; N.T. Trial 6/11/18, at 25-27. Moreover, while

there was evidence Maria and Appellant engaged in verbal argument earlier

in the evening, Maria’s neighbor, Margaret McGettigan, who overheard the

argument, testified while Appellant was yelling, Maria’s voice was “calming. It

was never raised. It was level. It didn’t go up and down. It was level.” N.T.

Trial, 6/07/18, at 140. She further stated at one point Maria came outside

onto her porch and the two spoke and Maria said, “she was fine; that she

wasn’t worried.” Id. There is nothing in this evidence which would justify a

finding that Maria had provoked Appellant, let alone sufficiently provoked him




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“to create uncontrollable passion in a reasonable person.” Commonwealth

v. Martin, 5 A.3d 177, 186 (Pa. 2010).

      Moreover, the instruction was at odds with Appellant’s defense that he

merely found Maria’s body. We note trial counsel initially admitted this, telling

the court the evidence did not support a voluntary manslaughter instruction

because “we would have had to put up a self-defense case, which we did not.”

N.T. Trial, 6/08/18, at 172. The court did not abuse its discretion or err when

it denied Appellant’s request.

      Appellant also claims the trial court erred in refusing to instruct the jury

on involuntary manslaughter. A defendant to a murder charge is entitled to

instruction on involuntary manslaughter “only when requested, and where the

offense has been made an issue in the case and the trial evidence would

reasonably support such a verdict.”     Commonwealth v. White, 415 A.2d

399, 402 (Pa. 1980). However, “[i]t has long been the rule in this

Commonwealth that a trial court should not instruct the jury on legal principles

which have no application to the facts presented at trial.” Id. at 400.

      The statutory definition of involuntary manslaughter is as follows:

      A person is guilty of involuntary manslaughter when as a direct
      result of doing an unlawful act in a reckless or grossly negligent
      manner, or the doing of a lawful act in a reckless or grossly
      negligent manner, he causes the death of another person.

18 Pa.C.S.A. § 2504(a).

      Here, Appellant’s expert, Dr. Wetli, disagreed with the Commonwealth’s

expert, Dr. Hood regarding the cause of death, he speculated Maria “could

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have died from homicide by unspecified means or from a drug overdose,

accident, suicide, or other means.”6 N.T. Trial, 6/11/18, at 13. However, this

testimony is both speculative and does not point to any reckless or grossly

negligent act by Appellant. Appellant also argues his allegedly drug-induced

delirium on the night in question caused him to behave “unpredictably.”

Appellant’s Brief, at 25. However, again, he points to no evidence of record

showing this alleged unpredictability led to a reckless or grossly negligent act

which caused Maria’s death.

       Further, these statements are inconsistent with his defense at trial. We

have clearly stated a defendant is not entitled to an instruction on involuntary

manslaughter where he denies committing any act causing the victim’s death.

Commonwealth v. Wright, 865 A.2d 894, 917 (Pa. Super. 2004).

Appellant’s claim the trial court erred in failing to instruct the jury on voluntary

and involuntary manslaughter does not merit relief.

       Appellant’s issues are either waived or lack merit. Thus, we affirm the

judgment of sentence.

       Judgment of sentence affirmed.

       Judge Colins joins the memorandum.

       Judge Strassburger files a concurring memorandum.



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6
 This testimony was rebutted by Dr. Hood’s testimony he did not find any
drugs in Maria’s system and had used expanded testing to look for non-typical
drugs. N.T. Trial, 6/06/18, at 96-97.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/20




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