J-A07017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN PERALTA                           :
                                               :
                       Appellant               :   No. 2627 EDA 2017

             Appeal from the Judgment of Sentence March 6, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009438-2015


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED JUNE 18, 2019

       Appellant, Jonathan Peralta, appeals from the March 6, 2017 Judgment

of Sentence entered in the Philadelphia County Court of Common Pleas

following his conviction of First-Degree Murder, Persons Not to Possess

Firearms, Carrying a Firearm Without a License, and Carrying a Firearm in

Public in Philadelphia.1 He challenges the weight and sufficiency of evidence,

and asserts that the trial court erred in the removing a juror and admitting

certain testimony. After careful review, we affirm.

       We glean the following factual and procedural history from the certified

record.




____________________________________________


118 Pa.C.S. § 2502; 18 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 6106(a)(1); and
18 Pa.C.S. § 6108, respectively.

____________________________________
* Former Justice specially assigned to the Superior Court.
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       On May 15, 2015, Appellant entered Déjà Vu, a barber shop on Front

Street in Philadelphia. He shook everyone’s hands, asked for “somebody’s”

whereabouts, and then left the barber shop. Appellant then went to a Chinese

take-out store on the same block. A few minutes later, Appellant exited the

Chinese take-out store by Front and Dauphin Streets, walked toward Steven

Justiniano (“decedent”), shot the decedent in the chest, and ran away.

Several street surveillance cameras recorded the events leading up to the

decedent’s death.2       The decedent was taken to Temple Hospital, and was

pronounced dead at 7:30 PM. An autopsy report concluded that the cause of

death was a gunshot wound to the chest.

       Police arrested Appellant on June 24, 2015. A jury trial commenced on

February 28, 2017, at which the Commonwealth presented videotape

evidence as well as testimony from Angel Matos, a barber shop employee,

Detective Thorsten Lucke, an expert in video recovery, and Dr. Albert Chu, a

forensic pathologist. The jury found Appellant guilty of First-Degree Murder,

Carrying a Firearm without a License, and Carrying a Firearm in Public in

Philadelphia. On March 6, 2017, after a stipulated trial, the trial court found

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2  The investigating police officers recovered videotape from several
surveillance cameras in the area of the murder. The videotape shows
Appellant walking in the neighborhood where the murder occurred, on Howard
Street, on West Dauphin Street, and then entering a Chinese take-out store
by Front and Dauphin Streets. Appellant later exited the Chinese take-out
store, walked towards the decedent, and lunged toward the decedent. The
video does not clearly show Appellant shooting decedent, but only Appellant
lunging at decedent and then running back in the direction he originally came
from, on West Dauphin Street and then Howard Street.

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Appellant guilty of Persons Not to Possess Firearms.       The court sentenced

Appellant to life imprisonment without the possibility of parole.

      Appellant filed a Post-Sentence Motion, which the trial court denied.

Appellant timely appealed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents the following questions for our review:

      1.    Where there was little evidence of the events preceding a
            shooting, except for a fleeting video of part of the incident
            demonstrating deficient and equivocal evidence of malice,
            and where there was no evidence of motive or threats
            toward the decedent, was the evidence insufficient to prove
            first degree murder?

      2.    Given the factors set forth above was the verdict against the
            weight of evidence, where the jury had insufficient evidence
            to make credibility determinations and judge whether the
            element of malice was proven?

      3.    Did the lower [c]ourt err in removing a juror during jury
            deliberations where the juror was acting conscientiously and
            diligently pursuing his duties as a juror? Did the lower
            [c]ourt err in not sharing with the litigants a letter the juror
            gave to the [c]ourt [c]rier, which it read before removing
            the juror?

      4.    Did the lower [c]ourt err when it permitted the
            Commonwealth to argue that the sole civilian witness was
            afraid to testify inferring that [Appellant], his family or
            associates had threatened him and then argued similarly in
            closing that the witness was afraid of Mr. Matos when there
            was no evidence to prove that?

Appellant’s Br. at 3-4.




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Sufficiency of Evidence

      Appellant claims that the evidence is insufficient to prove First-Degree

Murder because the evidence was “so speculative” regarding the critical

element of malice. Appellant’s Br. at 14-16. In support, Appellant relies on

the Commonwealth’s surveillance video evidence showing him backing-up

before a shot was fired, and asserts that because he did not proceed straight

toward the decedent and shoot him, there is no evidence of Appellant’s ill-will,

threat, or animosity towards the decedent. Id. at 14-22.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017).            “We review claims

regarding the sufficiency of the evidence by considering whether, viewing all

the evidence admitted at trial in the light most favorable to the verdict winner,

there is sufficient evidence to enable the fact-finder to find every element of

the crime beyond a reasonable doubt.” Commonwealth v. Miller, 172 A.3d

632, 640 (Pa. Super. 2017) (internal quotation marks and citation omitted).

“Further, a conviction may be sustained wholly on circumstantial evidence,

and the trier of fact—while passing on the credibility of the witnesses and the

weight of the evidence—is free to believe all, part, or none of the evidence.”

Id.   “In conducting this review, the appellate court may not weigh the

evidence and substitute its judgment for the fact-finder.” Id.




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      First-Degree Murder is an “intentional killing,” defined as a “willful,

deliberate and premeditated killing.” 18 Pa.C.S. § 2502(a), (d). To sustain a

First-Degree Murder conviction “the Commonwealth must prove that: (1) a

human being was unlawfully killed; (2) the person accused is responsible for

the killing; and (3) the accused acted with malice and specific intent to

kill.” Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015). A jury may

infer malice and a specific intent to kill from the defendant’s use of a deadly

weapon on “a vital part of the decedent’s body.” Commonwealth v. Hicks,

156 A.3d 1114, 1124 (Pa. 2013) (citation omitted). The chest is considered

a vital part of the body. Commonwealth v. Hanible, 836 A.2d 36, 39 (Pa.

2003).

      In its well-reasoned Rule 1925(a) opinion, the trial court correctly found

that the Commonwealth did not need to establish ill-will, threat, or animosity

between Appellant and the decedent because it was reasonable for the jury to

infer specific intent to kill from the use of a deadly weapon upon a vital part

of the decedent’s body. Trial Ct. Op., filed 4/19/18, at 3. Dr. Chu testified

that he conducted an autopsy of the decedent and concluded that he died from

a gunshot wound sustained on the left side of his chest. Id. at 4-5. We, thus,

conclude that Appellant is not entitled to relief on this claim.

Weight of Evidence

      Appellant asserts that he is entitled to a new trial because the verdict

shocks one’s sense of justice. Appellant’s Br. at 19. He argues the evidence




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was insufficient to allow the jury to make credibility determinations regarding

the element of malice.3 Id. at 19-24. This claim warrants no relief.

       When considering challenges to the weight of the evidence, we apply

the following precepts.       “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact.     Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

       Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

       “In order for a defendant to prevail on a challenge to the weight of the

evidence, the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Id. (internal quotation marks and

citation omitted).     As our Supreme Court has made clear, reversal is only

appropriate “where the facts and inferences disclose a palpable abuse of


____________________________________________


3 To the extent Appellant’s argument pertains to the sufficiency of the
evidence, we have found this claim without merit.

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discretion[.]”   Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations and emphasis omitted).

      A true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict, but questions the evidence that the jury

chose to believe. Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa.

Super. 2014). For that reason, the trial court need not view the evidence in

the light most favorable to the verdict winner, and may instead use its

discretion in concluding whether the verdict was against the weight of the

evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).

      In denying Appellant’s weight of evidence claim, the trial court found,

inter alia, that it was not against the weight of evidence for the jury to place

significant weight on the surveillance video compilation and the testimony of

Detective Lucke and Dr. Chu to conclude that Appellant shot the decedent in

the chest, which resulted in his death. Id. at 7-9.

      Appellant’s arguments are essentially a request that we reassess and

reweigh the evidence presented at trial. We cannot and will not do so. Our

review of the record indicates that the evidence supporting the jury verdict is

not tenuous, vague, or uncertain, and the verdict was not so contrary as to

shock the court’s conscience. We discern no abuse of discretion in the trial

court’s denial of Appellant’s weight challenge.




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Dismissal of Juror

      Appellant contends that the trial court abused its discretion by

dismissing Juror No. 12. Appellant’s Br. at 25-33.

      The decision to remove a juror is within the sound discretion of the trial

court and will not be disturbed absent an abuse of that discretion.

Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994).              “This discretion

exists even after the jury has been empaneled and the juror sworn.” Id. The

decision to remove a juror “must be based upon a sufficient record of

competent evidence to sustain removal.” Commonwealth v. Saxton, 353

A.2d 434, 442 (Pa. 1976).

      The trial court detailed three events that led to its discharge of Juror No.

12. First, on March 1, 2017, after the court informed the jury in its opening

instructions not to speak directly to the judge, Juror No. 12, raised his hand

and attempted to ask the judge a question, prompting the court to cut him off

and remind him not to speak to her. Trial Ct. Op. at 14. Second, on March

1, 2017, the court officer informed the trial court that Juror No. 12 informed

him of his opinion of the case; the trial court then questioned Juror No. 12

about his interaction with the court officer, and reminded him of the court’s

instructions not to discuss the case with the judge or court personnel. Id.

Third, on March 3, 2017, as the jurors walked toward the jury room to continue

deliberations, Juror No. 12 passed a letter, addressed to the trial judge, to a

court officer. Id. at 15. After the third incident, the trial court determined



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that Juror No. 12 was unfit to serve due to his failure to follow the court’s

instructions, and discharged Juror No. 12. Id.

      Appellant argues that there was insufficient evidence demonstrating

Juror No. 12 could not be fair and impartial. Appellant’s Br. at 25-33. He

acknowledges that Juror No. 12 attempted to communicate with the trial judge

and court officers, but describes the conduct as “de minimis infractions,”

claiming that Juror No. 12 was simply grappling with the evidence. Id. at 26,

30.

      Juror No. 12’s failure to heed the court’s directions was not de minimis.

The record demonstrates that Juror No. 12 refused to follow the trial court’s

instructions three times regarding communications with the trial judge and

the court’s officers. Therefore, we conclude that the trial court acted within

its discretion in dismissing Juror No. 12.

      Appellant also argues that it was improper for the trial court to have

precluded the parties from reviewing Juror No. 12’s March 3, 2017 letter

because the letter would allow the parties to understand the trial court’s

decision to remove him. Appellant’s Br. at 32-33. It was not the content of

the letter, but Juror No. 12’s refusal to follow the court’s instruction three

times that formed the basis for the trial court’s dismissal of Juror 12. Trial Ct.

Op. 14-15. Thus, the contents of the letter are irrelevant to the trial court’s

decision. Accordingly, Appellant is not entitled to relief on this claim.




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Witness Testimony

       In his last issue, Appellant raises two distinct sub-issues related to

Matos’s testimony: (1) that the trial court erred when it allowed the

Commonwealth to elicit prejudicial testimony from its witness, Matos;4 and

(2) that the trial court erred by allowing the Commonwealth to include this

prejudicial testimony in its closing argument. Appellant’s Br. at 33-43.

       Appellant’s claims are related to Matos’s testimony at trial. On direct

examination, Matos testified that on May 15, 2015, while he was working at

Déjà Vu, Appellant entered the shop, shook hands with people, asked for

“somebody’s” whereabouts, and then left. Trial Ct. Op. at 3. Three to four

minutes later, Matos heard a loud bang. Id. Matos stated that he left Déjà

Vu a couple minutes later and observed the decedent on the ground with a

bullet wound. Id.

       The prosecutor continued to examine Matos, and asked him why his trial

testimony contradicted his statement made at Appellant’s preliminary hearing,

in which he stated that he had never seen Appellant before in his life. N.T.,

2/28/17 at 171; see Trial Ct. Op. at 12. Appellant’s counsel objected; the

trial court overruled the objection. Id. at 171-72. Matos responded that his




____________________________________________


4 Although not stated in his Statement of Questions Involved, Appellant
argues in his brief that the trial court erred in admitting certain testimony.
Because Appellant raised this issue in his Rule 1925(b) Statement and the trial
court analyzed the issue, we will address the issue.

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testimony at trial was different because he was not currently inebriated and

he no longer lives in Philadelphia. Id. at 172-75; see Trial Ct. Op. at 12.

      Appellant first claims that Matos should have been precluded from

testifying that he could now testify truthfully at trial because he no longer

lived in Pennsylvania.    Appellant’s Br. at 33.     Appellant argues that the

testimony was prejudicial because it implied that Matos did not testify

truthfully at the preliminary hearing due to his fear that if he testified against

Appellant, Appellant or his associates would locate and harm him. Id. at 33-

39. This argument has no merit.

      The admissibility of evidence lies “within the sound discretion of the trial

court, and a reviewing court will not reverse the trial court’s decision absent

a clear abuse of discretion.” Commonwealth v. Young, 989 A.2d 920, 924

(Pa. Super. 2010).

      To be admissible, evidence must be relevant. See Pa.R.E. 401, 402.

However, relevant evidence may be excluded if the court determines that its

probative value is outweighed by the risk of unfair prejudice. Pa.R.E. 403.

“‘Unfair prejudice’ means a tendency to suggest [a] decision on an improper

basis or to divert the jury’s attention away from its duty of weighing the

evidence impartially.” Id., cmt.

      Here, the testimony of Matos at trial where he stated that he saw

Appellant immediately before the shooting, but did not identify him at the

preliminary hearing is relevant to the issue of whether it was Appellant who


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shot decedent.    The testimony about the reason that Matos changed his

testimony is equally relevant to assist the jurors in determining whether Matos

is testifying truthfully at trial or the preliminary hearing.      Although this

identification testimony can be prejudicial to Appellant, the trial court properly

weighed the probative value against the prejudicial impact and admitted it.

      Appellant also contends the trial erred in allowing the prosecutor to

reference Matos’s fears in his closing argument because the prosecutor

improperly implied that Matos was afraid that Appellant or his associates are

violent and would harm him if Matos testified against Appellant. Appellant’s

Br. at 39-43.

      “Our standard of review for a claim of prosecutorial misconduct is limited

to whether the trial court abused its discretion.” Commonwealth v. Harris,

884 A.2d 920, 927 (Pa. Super. 2005) (citation and quotation marks omitted).

In considering this claim, our attention is focused on whether the prosecutor’s

comments deprived the defendant of a fair trial, not a perfect one.

Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012) (citation

omitted).

      “Any challenge to a prosecutor’s comment must be evaluated in the

context and atmosphere of the entire trial.” Sanchez, 82 A.3d at 981. It is

improper for a prosecutor to offer any personal opinion as to the guilt of the

defendant or the credibility of the witnesses. Commonwealth v. Burno, 94

A.3d 956, 974 (Pa. 2014) (citation omitted). However, “it is entirely proper


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for the prosecutor to summarize the evidence presented, to offer reasonable

deductions and inferences from the evidence, and to argue that the evidence

establishes the defendant’s guilt.” Id.           Additionally, the prosecutor “may

employ     oratorical   flair   in   arguing   its    version     of    the    case   to   the

jury,” Commonwealth v. Weiss, 776 A.2d 958, 969 (Pa. 2001); and may

“respond     to   defense       arguments      with     logical        force   and    vigor,”

Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009).

      Here, the trial court opined that the prosecutor simply commented on

the evidence, Matos’s testimony, and any reasonable inferences arising from

the evidence. Trial Ct. Op. at 12-13. Therefore, it did not err in allowing the

prosecutor’s comments

      We agree with the trial court’s conclusion. In his closing, Appellant’s

counsel questioned why the Commonwealth did not present testimony from a

witness at the Chinese take-out restaurant. N.T., 3/1/17 at 132.                           The

prosecutor responded, explaining that “[p]eople are scared.” Id. at 168. The

prosecutor then used Matos as an illustration of “someone who was scared,”

summarized Matos’s testimony, and offered a reasonable inference of why

Matos’s testimony changed. The prosecutor explained that Matos did not want

to implicate someone who lived near him of murder in fear of retaliation.

Based on our review of the prosecutor’s statements, and the argument

Appellant’s counsel made, we conclude that the trial court properly exercised




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its discretion in overruling Appellant’s objections. Accordingly, Appellant is

not entitled to relief on this claim.

      Finding no merit to Appellant’s issues, we affirm his Judgment of

Sentence.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/19




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