J-S48013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                           Appellee

                     v.

DOMINIC SOUTO DIAZ

                           Appellant                       No. 1257 WDA 2015


           Appeal from the Judgment of Sentence July 17, 2015
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003451-2014


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                                        FILED JUNE 24, 2016

      Dominic Souto Diaz appeals from the July 17, 2015 judgment of

sentence   imposed        following    his   conviction   of    first-degree   murder,

aggravated assault, recklessly endangering another person, possessing an

instrument of crime, and firearms not to be carried without a license. We

affirm.

      The record reveals the following. On August 23, 2014, Appellant shot

and killed a bouncer, Hercules Rieger, outside The Bearded Lady, an after-

hours establishment located near 11th Street and Wayne Street in Erie,

Pennsylvania. A resident of that neighborhood, Javon Martin, testified that

he heard Appellant and Mr. Rieger, both known to him, arguing near the

entrance of The Bearded Lady.            Id. at 65.       He saw Mr. Rieger punch
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Appellant. N.T., 5/12/15, at 59. He reported that Appellant collapsed to the

ground after being struck by Mr. Rieger, but then arose and left the scene.

Id. at 60-61.    Shortly thereafter, Mr. Martin observed Appellant walking

back toward the club. Id. at 63. He saw Appellant retrieve a gun from his

waistband and shoot Mr. Rieger. Id.

      Another resident of the neighborhood, Jamie Barlorin, testified that he

saw and heard two men arguing.          He later identified the men from a

photographic array as Appellant and bouncer Marzell Stovall.      Id. at 116.

Mr. Barlorin saw Mr. Stovall strike Appellant in the head with a tire iron. Mr.

Barlorin heard a gunshot approximately twenty minutes later and he placed

a 911 call. Id. at 117, 120.

      Jomo McAdory was also working as a bouncer at The Bearded Lady the

night of the shooting.   He confirmed that there was a physical altercation

involving Rieger and Appellant and that Appellant was knocked to the

ground. N.T., 5/13/15, at 38-39. McAdory testified that, approximately ten

to fifteen minutes later, he heard a gunshot and saw Rieger fall to the

ground, but he did not see who fired the shot. Id. at 40.

      Dr. Eric Vey, a forensic pathologist, testified that he performed an

autopsy on the victim.   He concluded that Mr. Rieger died due to a single

gunshot wound to the chest. Id. at 148. The bullet pierced the breastbone,

impacted the right side of the heart, went into the liver, and back to the

chest again where it struck the lower right lobe of the lung.     Id. at 151.

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Based on a lack of stippling in the wound and the point of entry of the bullet,

he opined that the shooter was more than two feet from the victim and

facing him when the fatal shot was fired. Id. at 148-149, 157-158.

      Raymond MacDonald, a senior manager of the law enforcement

management group for T-Mobile, verified that phone calls made from the

phone Appellant was carrying just prior to his arrest placed him in the

vicinity of the murder when it occurred.      N.T., 5/13/15, at 3-4, 35-36.

Appellant offered an expert who offered the contrary opinion that the phone

records placed Appellant anywhere from .84 to 2.75 miles from the scene at

the time of the shooting.    He also attempted to discredit the eyewitness

testimony of Mr. Martin, who was in jail on a parole violation, with testimony

of Mr. Martin’s jail mates that Mr. Martin told them Appellant was not at the

scene. Id. at 52-64.

      On May 14, 2015, a jury returned a guilty verdict against Appellant on

all counts. On July 17, 2015, Appellant was sentenced to life imprisonment

on the first-degree murder conviction and twelve to twenty-four-months

imprisonment for possessing an instrument of a crime, which was to run

consecutive to the life sentence. The convictions for aggravated assault and

recklessly endangering another person merged with the murder charge. The

court imposed a twenty-four to forty-eight-month term of imprisonment to

run concurrent to the life sentence on the firearms offense.




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      Appellant filed a timely post-sentence motion seeking modification of

his sentence and judgment of acquittal based on the weight of the evidence.

Specifically, with regard to the latter, Appellant relied upon the defense

expert’s testimony that, according to cell phone records, Appellant was not

located near the scene of the shooting.     In addition, Appellant maintained

that the fact he sustained no residual injuries from the physical altercations

that occurred that night constituted proof that he was not present at the

scene. The motion was denied by the trial court and Appellant appealed on

August 17, 2015.    Appellant complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and

the trial court issued its opinion. Appellant raises two issues for our review:

      1. Did the Honorable Court of Common Pleas commit an error of
      law when it denied [Appellant’s] Post-Sentence Motion claiming
      insufficient evidence and a verdict against the weight of the
      evidence where [Appellant] was found guilty of first degree
      murder after a trial in which there was no evidence of malice or
      the specific intent to kill compounded by eyewitness testimony
      that before the shooting [Appellant] appeared drunk and that
      [Appellant] had been beaten with a tire iron twenty minutes
      before the shooting and other eyewitness testimony that the
      victim punched [Appellant] in the face twice just before the
      shooting?

      2. Where an eyewitness testified that before the shooting
      [Appellant] appeared drunk and that [Appellant] had been
      beaten with a tire iron twenty minutes before the shooting and
      another eyewitness testified that the victim punched [Appellant]
      in the face twice just before the shooting, is it obvious from the
      record that [Appellant’s] trial counsel was ineffective for failing
      to request a charge to the jury on diminished capacity or
      involuntary manslaughter and failing to address in his closing



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      argument diminished capacity, heat of passion or the possibility
      of a verdict of voluntary manslaughter?

Appellant’s brief at 2.

      Appellant’s first issue is a challenge to both the sufficiency and the

weight of the evidence.    We will treat them as two separate issues.                 In

determining whether there is sufficient evidence for the factfinder to find

every element of the crime beyond a reasonable doubt, we view all the

evidence admitted in a light most favorable to the verdict winner.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa.Super. 2014). The

Commonwealth may sustain its burden of proof with purely circumstantial

evidence. Id.

      Appellant contends that the Commonwealth presented no evidence of

malice or specific intent to kill that would support his first-degree murder

conviction. He argues that Mr. Martin’s testimony that Appellant retrieved a

gun   from   his   waistband    and   pulled   the   trigger    “fell   short   of   the

Commonwealth’s burden to prove malice and specific intent to kill[,]” as

there was no evidence that Appellant pointed the gun at the victim.

Appellant’s brief at 11.

      Under Pennsylvania law, "[a] person is guilty of criminal homicide if he

intentionally, knowingly, recklessly or negligently causes the death of

another human being.”          18 Pa.C.S. § 2501(a).           “A criminal homicide

constitutes murder of the first degree when it is committed by an intentional



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killing.” 18 Pa.C.S. § 2502(a). An intentional killing is defined as a “killing

by means of poison, or by lying in wait, or by any other kind of willful,

deliberate and premeditated killing.”      18 Pa.C.S. § 2502(d).      For the

Commonwealth to obtain a first-degree murder conviction, it must prove

beyond a reasonable doubt that a human being was killed unlawfully, the

defendant perpetrated the killing, and the defendant acted with malice and

with a specific intent to kill. Commonwealth v. Mattison, 882 A.3d 386,

392 (Pa. 2013).

      Appellant cites no authority in support of his contention that proof he

intentionally aimed the firearm at the victim is required before one could

draw an inference of his specific intent to kill. As this Court acknowledged in

Commonwealth v. Shank, 883 A.2d 658 (Pa.Super. 2005), where an actor

does not verbalize the reasons for his conduct, we look at the act itself to

glean his intentions.   Sometimes the intention is obvious from the act.     A

specific intent to kill may be inferred from the use of a deadly force upon a

vital part of the human body.     See Commonwealth v. Cash, 2016 Pa.

LEXIS 1081, *1 (Pa. 2016) (malice inferred from gunshot to the back of the

victim’s head). Shooting the victim in the chest is sufficient to support an

inference of malice. In addition, three witnesses testified that, prior to the

shooting, there was an altercation involving Appellant and the victim. Mr.

Martin observed Appellant pull a gun from his waistband and shoot the

victim.   Based upon our thorough review of the record, we conclude the

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evidence viewed in the light most favorable to the Commonwealth, as

verdict winner, provided ample proof that Appellant acted with the specific

intent to kill when he shot Mr. Rieger.

      Appellant’s claim that the verdict is contrary to the weight of the

evidence fares no better.    He offers no argument, citation to authority, or

support for his weight-of-the-evidence claim. This Court’s role in reviewing

such an issue is limited to “a review of the exercise of discretion, not of the

underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). As

our High Court clarified in Clay, the appellate standard of review is distinct

from that applied by the trial court:

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

Clay, supra at 1055 (citations omitted) (quoting Commonwealth v.

Widmer, 744 A.2d 745, 753 (Pa. 2000)).           The Court explained the trial

court’s discretion is not unfettered.     “Discretion must be exercised on the

foundation of reason, as opposed to prejudice, personal motivations, caprice



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or arbitrary actions.” Id. Discretion is abused “where the course pursued

represents not merely an error of judgment, but where the judgment is

manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill-will.” Id.

The trial court concluded that, as the record clearly demonstrated, the

verdict “did not shock one’s sense of justice.” Trial Court Opinion, 11/9/15,

at 7. The trial court applied the proper standard and we find no abuse of

discretion. This claim fails.

       Finally, Appellant alleges that his trial counsel was ineffective in failing

to present alibi, diminished capacity, or heat of passion defenses and in

failing to seek a verdict of voluntary manslaughter.            While conceding that

such    claims      are   generally     reserved     for   collateral   review    under

Commonwealth v. Grant, 813 A.2d 726, 737-738 (Pa. 2002), Appellant

relies upon Commonwealth v. Moser, 921 A.2d 526, 530 (Pa.Super.

2007), for the proposition that we can reach his ineffectiveness claims under

an exception for such claims “raised in a timely post-sentence motion,

developed at a hearing devoted to the ineffectiveness claim, and ruled on by

the trial court.”    Appellant asserts that this exception is applicable herein

because he raised this claim in his post-sentence motion and trial counsel’s

ineffectiveness is obvious.

       The   exception     to   which    Appellant    alludes   was     carved   out   in

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), where claims of

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ineffective assistance of counsel were raised and preserved in the trial court

in post-sentence motions, a hearing was conducted, and the trial court

addressed the ineffectiveness claims in its opinion.    Preliminarily, we note

that there was no evidentiary hearing on Appellant’s ineffectiveness claims

and the trial court did not address them.1         Furthermore, the Bomar

exception was abrogated in Commonwealth v. Holmes, 79 A.3d 562, 564

(Pa. 2013).      Therein, our Supreme Court reposed “discretion in the trial

courts to entertain such claims, but only if (1) there is good cause shown,

and (2) the unitary review so indulged is preceded by the defendant's

knowing and express waiver of his entitlement to seek PCRA review from his

conviction and sentence, including an express recognition that the waiver

subjects further collateral review to the time and serial petition restrictions

of the PCRA.”      These circumstances are not present herein.     Hence, any

claims of ineffective assistance of counsel were properly deferred to

collateral review.

       Judgment of sentence affirmed.




____________________________________________


1
  In response to Appellant’s claim that counsel’s ineffectiveness was obvious,
the trial court pointed to evidence in the record that counsel had difficulty
subpoenaing witnesses. See N.T., 5/13/15, at 100-102, 181-183. The trial
court also directed this Court’s attention to that portion of the record where
it instructed the jury on the alibi defense. Id. at 162.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




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