J-S19009-16




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

SANTIAGO PEDROSO,

                         Appellant                    No. 846 EDA 2015


     Appeal from the Judgment of Sentence Entered February 25, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012715-2013


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 17, 2016

      Appellant, Santiago Pedroso, appeals from the judgment of sentence

of an aggregate term of life imprisonment, imposed after he was convicted

of one count each of first-degree murder (18 Pa.C.S. § 2502(a)), carrying a

firearm without a license (18 Pa.C.S. § 6106), carrying a firearm on a public

street in Philadelphia (18 Pa.C.S. § 6108), and possessing an instrument of

crime (18 Pa.C.S. § 907). After careful review, we affirm.

      The facts which led to Appellant’s convictions are set forth in the

following portion of the trial court’s Pa.R.A.P. 1925(a) opinion:

      At trial, the Commonwealth presented the testimony of
      Philadelphia Police Officers Richard Keen, Carlos Cruz, Deatrice
      Kennedy (ret.), and Clyde Jones, Walter White, Jeffrey Minio,
      and Rachel Pedroso. [Appellant] presented the testimony of
      Philadelphia Police Officer Justin Kensey. Viewed in the light
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     most favorable to the Commonwealth as the verdict winner, the
     evidence established the following.

     On June 21, 1992, at approximately 7:30 p.m., [Appellant] and
     his daughter, Rachel Pedroso, were having a Father’s Day dinner
     at The Hathaway Inn, at 515 West Chelten Avenue. While they
     were eating dinner, [Appellant] talked to Rachel about the
     relationship between [Appellant’s] wife, Maria Gomez, and
     Delores Alvarez.     Alvarez had moved to Philadelphia from
     California and had previously lived with [Appellant], Rachel, and
     Gomez. About one month prior to the Father’s Day dinner,
     Rachel, Gomez, and Alvarez had moved out of the home because
     [Appellant] believed that Alvarez was having a lesbian affair with
     Gomez and [Appellant] wanted Alvarez out of the house.

     As [Appellant] and Rachel were talking at dinner, Gomez and
     Alvarez entered the restaurant.       Upon seeing Gomez and
     Alvarez, [Appellant] stated, “God sent her to me” and left the
     restaurant with Rachel, returning to his home approximately one
     block away. [Appellant] then went into the basement and,
     before leaving the house, told Rachel, “I’m sorry I have to do
     this, but I’m doing this because of you, because you don’t’ want
     to come live with me.” [Appellant] also told Rachel to stay at his
     house, as he didn’t want her to see what he was going to do.

     Defendant then returned to the restaurant, with Rachel following
     him saying, “daddy no, daddy, no.”            Rachel continually
     attempted to get [Appellant] not to return to the restaurant, but
     [Appellant] repeatedly pushed her away.         [Appellant] then
     entered the restaurant, approached Gomez and Alvarez, pulled
     out a gun and shot Alvarez five times. [Appellant] used a black
     .38 caliber revolver to shoot Alvarez. [Appellant] then turned
     the gun on Gomez, but Rachel interposed herself between them
     and [Appellant] lowered the gun. [Appellant] told Gomez that
     he would not shoot her because of their daughter. [Appellant]
     then left the restaurant on foot. Rachel identified her father to
     police shortly after the shooting.

     Following the shooting, [Appellant] fled from the United States,
     eventually being arrested more than twenty-one years later in
     the Philippines. Upon being returned to Philadelphia, [Appellant]
     provided a statement to police, in which [Appellant] admitted
     that he had shot Alvarez and fled the scene. [Appellant] stated
     that he had used a .38 caliber revolver.        [Appellant] then
     admitted that he had fled Philadelphia, traveling first to New


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      York City, then the Dominican Republic, then Venezuela, and
      finally to the Philippines, where he had remarried. [Appellant]
      claimed in his statement that he only fired his gun after being
      shot at by Alvarez. However, no firearm was ever recovered
      from Alvarez.

Trial Court Opinion (TCO), 5/28/15, at 2-3 (footnote and citations to the

record omitted).

      On February 25, 2015, following a jury trial, Appellant was convicted

of first-degree murder, carrying a firearm without a license, carrying a

firearm on a public street in Philadelphia, and possession of an instrument of

crime. Appellant filed a notice of appeal on March 24, 2015, followed by a

timely Rule 1925(b) statement. He now presents the following, sole issue

for our review: “Did the [t]rial [c]ourt err by failing to instruct the jury on

Voluntary Manslaughter – Heat of Passion?” Appellant’s Brief at 3.

      “[T]he relevant inquiry for this Court when reviewing a trial court’s

failure to give a jury instruction is whether such charge was warranted by

the evidence in the case.” Commonwealth v. Baker, 963 A.2d 495 (Pa.

Super. 2008). Additionally, we have stated:

      In reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error.     Consequently, the trial court has wide

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     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.

Id. at 507 (quoting Commonwealth v. Brown, 911 A.2d 576, 582-583

(Pa. Super. 2006)).     Moreover, the Pennsylvania Supreme Court has

explained,

     with respect to a “heat of passion” voluntary manslaughter
     instruction: A voluntary manslaughter instruction is warranted
     only where the offense is at issue and the evidence would
     support such a verdict. To support a verdict for voluntary
     manslaughter, the evidence would have had to demonstrate
     that, at the time of the killing, appellant acted under a sudden
     and intense passion resulting from serious provocation by the
     victim. If any of these be wanting – if there be provocation
     without passion, or passion without a sufficient cause of
     provocation, or there be time to cool, and reason has resumed
     its sway, the killing will be murder.

Commonwealth v. Sanchez, 82 A.3d 943, 979-80 (Pa. 2013) (internal

quotation marks and citations omitted).

     ‘Heat of passion’ includes emotions such as anger, rage, sudden
     resentment or terror which renders the mind incapable of
     reason. An objective standard is applied to determine whether
     the provocation was sufficient to support the defense of ‘heat of
     passion’ 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, 649-50 (Pa. 2009) (internal

quotation marks and citations omitted).

     Here, the trial court provided the following, well-reasoned explanation

for its decision not to include a jury charge for voluntary manslaughter –

heat of passion:


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      [O]n the day of the murder, nothing occurred that could
      arguably constitute provocation sufficient for a voluntary
      manslaughter instruction. The victim, Alvarez, and [Appellant’s]
      wife, Gomez, simply walked into the restaurant and sat down to
      have dinner.       They had no interaction whatsoever with
      [Appellant]. However, [Appellant] claims that a previous event
      constituted sufficient provocation. In particular, he argued at
      trial in support of his request for a voluntary manslaughter
      instruction that [Appellant] was provoked when his wife and
      daughter moved out of [his] house because his wife was having
      a lesbian affair with Gomez. That event, however, occurred
      about a month prior to the killing. Accordingly, [Appellant’s]
      claimed provocation was too remote in time to justify a
      voluntary manslaughter verdict.

TCO at 4-5. We agree that the record does not reflect a sufficient cause of

provocation to support a heat of passion defense. “As a matter of law, one

month is a sufficient time to cool.”   Commonwealth v. Dews, 239 A.2d

382, 382 (Pa. 1968) (concluding that defendant was not entitled to a

voluntary manslaughter instruction where the deceased badly beat up the

defendant’s brother one month prior to the killing).

      Appellant avers that the question of whether the evidence indicated

sufficient provocation to support a ‘heat of passion’ voluntary manslaughter

defense should have gone to the jury. Appellant’s Brief at 17. However, we

have stated:

      A trial court must make an initial determination whether
      sufficient evidence has been presented of serious provocation.
      See Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328
      (1983) (where evidence does not support finding of
      manslaughter, court need not submit issue to jury);
      Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968)
      (where no evidence of manslaughter, it is proper to refuse to
      submit manslaughter issue to jury).




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Commonwealth v. Carr, 580 A.2d 1362, 1364 (Pa. Super. 1990). Based

on the foregoing, we discern no abuse of discretion by the trial court.

       Appellant further argues that “the [t]rial c[]ourt failed to give

appropriate weight to the facts leading up to the killing of the victim.”

Appellant’s Brief at 17.       We acknowledge that the Pennsylvania Supreme

Court has stated:        “In making the objective determination as to what

constitutes sufficient provocation[,] reliance may be placed upon the

cumulative impact of a series of related events.” Commonwealth v.

McCusker, 292 A.2d 286, 290 (Pa. 1972).          However, we find Appellant’s

heavy reliance on McCusker to be misplaced.

       The issue before the Court in McCusker was whether psychiatric

evidence was admissible in a murder prosecution for the limited purpose of

determining whether the defendant acted in the heat of passion.              To

establish sufficient provocation, the appellant relied on the following events:

       [H]is awareness within the last month before the crime that his
       wife had entered into a meretricious relationship with his step-
       brother; his knowledge within minutes of the crime that his wife
       was perhaps pregnant with his step-brother’s child; and his
       wife’s threat immediately before the crime that she was going to
       leave defendant and take with her his only child.

Id. (emphasis added).1 Appellant suggests that the facts in the instant case

are “almost identical” to the facts in McCusker and, therefore, he concludes
____________________________________________


1
  The Court in McCusker did not make a determination as to whether the
foregoing events compelled a heat of passion charge. Rather, it held that
psychiatric evidence is admissible as an aid in determining whether the
(Footnote Continued Next Page)


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that a jury instruction for ‘heat of passion’ voluntary manslaughter should

have been required as a matter of law in the present case. Appellant’s Brief

at 17.

         Although both cases involve the appellant learning of his spouse’s

affair within a month of committing the crime, McCusker is clearly

distinguishable from the present case. In McCusker, the appellant learned

of his wife’s pregnancy and was threatened by his wife with custody of their

child immediately prior to the crime.             These two factors could arguably

constitute provocation.        Whereas, in the instant case, the record indicates

that Appellant had known for some time of his wife’s plans to move away

with their daughter and there was no interaction or confrontation between

Appellant and his wife, Gomez, prior to him shooting Alvarez.

         After careful review, we agree with the trial court’s assessment that

the evidence would not have supported a verdict of voluntary manslaughter.

         Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

defendant acted in the heat of passion at the time of his offense. Id. at
293.    Appellant appears to base his argument on the concurring and
dissenting opinion, in which Justices Eagen and O’Brien expressed their
opinion that the trial court erred in precluding the jury from returning a
verdict on the charge of voluntary manslaughter, and that “such a verdict
should not have been ruled out as a matter of law.” Appellant’s Brief at 16-
17 (quoting McCusker, 292 A.2d at 293).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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