J-S08025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JESUS CHUITO PAGAN,                      :
                                          :
                    Appellant.            :   No. 503 EDA 2018


            Appeal from the Judgment of Sentence, June 11, 2015,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0003753-2014.


BEFORE:     BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MAY 03, 2019

      As part of a September-2013 push to expand his Philadelphia market-

share, heroin-dealer Jesus Chuito Pagan held a drug give-away on the streets

of the Kensington neighborhood. Free samples attracted quite the crowd of

addicts. The crowd, in turn, attracted the attention of Charles Jones and Justin

Carter, community members concerned for the health and safety of the local

children.

      Mr. Jones approached Carlos Amoros, Pagan’s mid-level dealer whose

nearby home served as a drug-distribution center. Mr. Jones asked Amoros

to end the give-away. Amoros agreed.

      Overhearing this conversation, Pagan instructed his street-level dealer,

Jonathan Maldonado, to give him a handgun. Maldonado complied, and Pagan




____________________________________
* Former Justice specially assigned to the Superior Court.
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opened fire. The addicts began to flee. Mr. Carter also fled, but Pagan shot

him in the back and killed him.

       The Commonwealth charged and a jury convicted Pagan of murder of

the first degree and three lesser offenses.1 The trial court sentenced Pagan

to life in prison without parole for the murder conviction and various shorter,

consecutive sentences for the others.

       Pagan appeals from that judgment of sentence. Because the arguments

in his brief are unpersuasive under our applicable standard of review, no relief

is due.

       Pagan’s three claims of error are:

          1. Did the trial court err by deeming the Commonwealth’s
             witness, Carlos Amoros, unavailable to testify and
             permitting the Commonwealth to read his preliminary-
             hearing testimony to the jury?

          2. Did the trial court err and cause him irreparable harm by
             permitting hearsay testimony from a detective?

          3. Was the verdict against the weight of the evidence?

See Pagan’s Brief at 4 – 5. The first two issues challenge evidentiary rulings.

The third challenges the trial court’s refusal to find the verdict to be against

the weight of the Commonwealth’s evidence.




____________________________________________


1  18 Pa.C.S.A. § 2502(a). Pagan’s lesser offenses were possession of an
instrument of a crime, carrying a firearm without a license, and carrying a
firearm in the City of Philadelphia. 18 Pa.C.S.A. § 907; 18 Pa.C.S.A. § 6106;
18 Pa.C.S.A. § 6108.

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      Pagan acknowledges in his brief that this Court’s “standard of review

with regard to admissibility of evidence and weight of the evidence is an abuse

of discretion.” Id. at 2; see also Commonwealth v. Nelson, 652 A.2d 396,

399 (Pa. Super. 1995) (indicating that evidentiary rulings are subject to an

abuse-of-discretion review, rather than a de novo one); and Commonwealth

v. Diggs, 949 A.2d 873, 880 (Pa. 2008) (holding that a trial court’s ruling

regarding “a weight of the evidence claim is the least assailable of its rulings”).

An abuse of discretion only “occurs if the trial court renders a judgment that

is manifestly unreasonable, arbitrary or capricious; that fails to apply the law;

or that is motivated by partiality, prejudice, bias or ill-will.” Hutchinson v.

Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. 2005). In other

words, a reasonable judgment by the trial court – even one this Court might

think is incorrect – is not an abuse of discretion, without something more.

      In all three of his appellate arguments, Pagan pays no heed to our highly

deferential standard of review. Instead, he first reargues his theory of why

Amoros was not unavailable – i.e., that the Commonwealth did not make

reasonable efforts to procure him for trial. See Pagan’s Brief at 13 – 14. The

trial court explained its finding of unavailability as follows:

         [Defense counsel] was provided with Amoros’ statements
         and had the opportunity to cross-examine Amoros at the
         preliminary hearing on the areas of bias, motive to lie, and
         lack of credibility. Therefore, [Pagan] had the opportunity
         to confront the witness against him.

            Furthermore, the Commonwealth showed that it had not
         been able, by reasonable means, to procure Amoros’
         attendance at trial. [A police officer] personally served

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         Amoros [a subpoena] two days before trial and confirmed
         his intention to testify. [Multiple investigators] visited
         Amoros’ residence and had spoken to his neighbors, wife,
         and family, but were unable to locate him.           [The
         Commonwealth] was unable to locate [him] in custody, the
         medical examiner’s office, or local hospitals.        The
         Commonwealth also obtained a bench warrant for Amoros
         when he failed to appear.

                            *      *     *      *     *

            The Court admitted Amoros’ statement from the
         preliminary hearing, which is a formal legal proceeding
         where [Pagan] had the full opportunity to cross-examine the
         witness. [Pagan’s] reliance on both Commonwealth v.
         Mangini, 425 A.2d 734 (Pa. 1981), at trial and
         Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992), on
         appeal is misplaced, because the Lively standard was
         created in order to ensure “prior inconsistent statements
         were given under highly reliable circumstances to warrant
         admission as substantive evidence.” Lively, at 10.

            Amoros did not adopt his prior statement given to police
         during the investigation at the preliminary hearing and his
         testimony had internal inconsistencies. However, [Pagan]
         had the full opportunity to address these inconsistencies
         during the preliminary hearing.          Furthermore, the
         Commonwealth presented Amoros’ testimony, with limited
         omissions by agreement of the parties, by focusing on the
         inconsistent statements.     The jury was free to assign
         whatever credibility it determined appropriate to this
         testimony. Thus, this Court properly allowed Amoros’
         preliminary-hearing testimony to be introduced at trial after
         finding that Amoros was unavailable.

Trial Court Opinion, 6/29/18, at 34-35. Pagan fails to articulate how the trial

court abused its discretion in reaching its decision or that the above analysis

is manifestly unreasonable, arbitrary, or the result of bias, ill will, or prejudice.

We are therefore unpersuaded that an abuse of discretion occurred.



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      In his second claim of error, Pagan simply presumes that the detective

offered hearsay testimony, even though the trial court ruled otherwise. See

id. at 16. Pagan argues that ruling prejudiced him.

      We do not reach the question of prejudicial effect until after we conclude

an abuse of discretion occurred.      By ignoring our standard of review and

arguing only prejudicial effect, Pagan has put his cart before the horse. Pagan

must first show that the trial court’s allowance of the testimony was an abuse

of discretion. He fails to do so.

      Finally, in his third appellate issue, Pagan claims that the testimony of

the Commonwealth’s witnesses were “inconsistent and highly unreliable.” Id.

at 19. He also attempts to relitigate whether the jury should have heard the

unavailable Amoros’ preliminary-hearing testimony and the prejudicial effect

of the detective’s supposed hearsay. Pagan, however, never claims that the

trial court abused its discretion by deferring to the jury’s credibility findings or

reasonable inferences. He simply reargues, de novo, for a new trial on appeal.

      Pagan has failed to contend or persuade us that the trial court abused

its discretion in any way. Accordingly, we dismiss all of his appellate issues

as meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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