J-S37032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

IVAN RODRIGUEZ

                             Appellant                  No. 2853 EDA 2014


              Appeal from the Judgment of Sentence May 23, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015766-2009,
              CP-51-CR-0015767-2009, CP-51-CR-0015770-2009,
               CP-51-CR-0015772-2009, CP-51-CR-0015778-2009


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 23, 2015

        Ivan Rodriguez appeals from the judgment of sentence imposed by the

Court of Common Pleas of Philadelphia County after a jury convicted him of

four counts of second-degree murder,1 and one count each of robbery,2

conspiracy,3 and possessing an instrument of crime.4 After careful review,

we affirm.

        The trial court set forth the underlying facts as follows:

____________________________________________


1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 3701.
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 907.
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     On June 10, 2009, [Rodriguez] and co-defendant, Donta
     Craddock (Craddock), devised a plan to commit a robbery in
     order to get money to have a Philadelphia Parking Authority
     wheel boot removed from Rodriguez’s white Ford Excursion SUV.
     [Rodriguez] and Craddock used the car of Rodriguez’s girlfriend’s
     mother, a silver Pontiac Grand Prix, and went out to look for a
     victim. On Rising Sun Avenue in the Northeast section of . . .
     Philadelphia, [Rodriguez] and Craddock encountered William
     Sandoval (Sandoval) as he was about to get on his Yamaha
     motorcycle. As Sandoval put the key in the ignition of his
     motorcycle, [Rodriguez] and Craddock approached him from
     their car which was parked across the street. Craddock held a
     .357 magnum revolver to Sandoval’s head, also moving it about
     his torso, and demanded that Sandoval give them his
     motorcycle. [Rodriguez] drove the motorcycle south towards
     Roosevelt Boulevard back to his home.

     Rodriguez arrived at his house at 4144 N. 8th Street and parked
     the motorcycle outside. He knocked on his front door and when
     no one answered, he went around to the side of the house. He
     removed the air conditioner on the side of the house and climbed
     in through the first floor window. He went into the house,
     changed his shirt, and then covered up the motorcycle outside.
     A neighbor across the street, Gwendolyn Simpkins (Simpkins),
     not only witnessed all of this but had also previously seen
     [Rodriguez] and Craddock leave [Rodriguez’s] house in the silver
     Pontiac Grand Prix. Simpkins called 9-1-1 and asked if there
     was a report concerning a motorcycle. When they told her that
     there was, she gave them the location of [Rodriguez’s] home.
     Within minutes, the police arrived and [Rodriguez] fled on foot
     from the back of his house over the back fence. [Rodriguez]
     was apprehended by the police at 8th and Lycoming Streets.

     Unbeknownst to [Rodriguez] and Craddock, Katrina Sherfield
     (Sherfield) and her boyfriend witnessed the robbery and followed
     Craddock.     At Westford and Roosevelt Boulevard they saw
     Officer Matos-Wild (Matos) handling a traffic accident. Sherfield
     and her boyfriend pulled their car up alongside Matos and told
     Matos that the driver of the silver Pontiac on the street was just
     involved in a hijacking and that the driver was in possession of a
     gun. Matos got the information of the traffic accident victim and
     then got in his vehicle to follow the suspect. He immediately got
     on police radio and told them that he had a priority; there is a
     man with a gun and a possible carjacking. He continued to
     follow Craddock and asked for another police car to assist in

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        stopping [the] vehicle. Matos attempted to stop the vehicle
        driven by Craddock but Craddock fled at a high rate of speed,
        running a red light and hitting a van. Matos lost sight of
        Craddock at that point as he called for assistance to check on the
        van that had been struck by Craddock.

        While Matos had been searching for him, Craddock struck four
        people at 3rd & Annsbury Streets, three juveniles and one adult.
        All four individuals sustained severe injuries. Along with a
        multitude of bones being fractured, including all of the bones in
        the back of the head, juvenile A.G. suffered a traumatic
        amputation at the hip of the right leg and was pronounced dead
        on the scene. Juvenile G.R. was dragged under the . . . vehicle
        [driven by Craddock]. G.R.’s skull was fractured in multiple
        places, lacerating the brain, and G.R. was pronounced dead on
        the scene. The other juvenile, R.S., whose leg [had] been
        severed but who had a pulse, was taken by police to St.
        Christopher’s Hospital where she was pronounced dead at 7:57
        p.m. The adult victim, Latoya Smith, mother of R.S., eventually
        succumbed to her injuries the following day, June 11, 2009, at
        approximately 7:30 a.m. Autopsies were performed on all four
        decedents, and Deputy Chief Medical Examiner Dr. Gary Collins
        completed the autopsies of the juveniles. The cause of death for
        all individuals struck was found to be multiple blunt impact
        injuries.

Trial Court Opinion, 3/3/15, at 2-4.

        On May 23, 2012, a jury convicted Rodriguez of the above-referenced

offenses and immediately thereafter, the court imposed mandatory life

sentences for the second-degree murders.

        Rodriguez filed a timely appeal, which was dismissed due to appointed

counsel’s failure to file a brief. On April 1, 2014, Rodriguez filed a pro se

petition pursuant to the Post Conviction Relief Act. 5 He requested a Grazier

____________________________________________


5
    42 Pa.C.S. §§ 9541-9546.




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hearing,6 which the court held on September 18, 2014. The court permitted

Rodriguez     to   represent himself,          and reinstated his     appellate   rights.

Rodriguez then filed a timely notice of appeal, and a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court filed its

Rule 1925(a) opinion on March 3, 2015.

       On appeal, Rodriguez raises the following issues, verbatim, for our

review:

       1. Whether the district attorney, a quasi-judicial officer,
          presented the Commonwealth’s case unfairly, whereas the
          Prosecutor pressed upon the court overruled case law during
          the preliminary hearing to obtain a prima facie case for
          murder in violation of [Rodriguez’s] rights to due process of
          law?

       2. Whether the trial judge’s conduct was in advocacy for the
          district attorney whereas [Rodriguez] was held over for trial
          for an offense that was overruled by other legal authority in
          violation of [Rodriguez’s] rights to due process of law. The
          coordinate jurisdiction rule was used erroneously, and should
          not have been followed?

       3. Whether the trial judge misrepresented the court record in
          advocacy for the district attorney when the judge altered the
          language in the court’s record of the proceeding?

Appellant’s Brief, at 4.

       The first two issues are related, and accordingly, we address them

together.       Rodriguez     argues     that     at   his   preliminary   hearing,   the

Commonwealth drew the court’s attention to Commonwealth v. Doris, 135


____________________________________________


6
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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A. 313 (Pa. 1926). In Doris, a group of armed co-conspirators robbed a van

that was transporting currency from a bank to a depository.         After they

seized bags of cash, one of the co-conspirators, Doris, was captured by

police. The others escaped on a milk wagon and in the course of an ensuing

shootout with police, an officer was killed. Doris was convicted of murder,

and on appeal the Supreme Court rejected his argument that he could not

be held responsible for what happened later because he was seized by

officers shortly before the killing took place.     The Court noted, “[t]his

overlooks the fact that he joined in the common design and is responsible

for the acts of each naturally to be expected to occur in carrying it out.” Id.

at 315.

      Rodriguez asserts that the Commonwealth violated his right to due

process   because   Doris    was   overruled   by   the   Supreme    Court   in

Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958). As an initial matter,

we note that Redline did not overrule Doris.        Rather, Redline overruled

Commonwealth v. Thomas, 117 A.2d 204 (Pa. 1955), a case in which the

Supreme Court held that a defendant could be held liable for the death of a

co-felon who was killed by a police officer.   Redline simply discusses and

distinguishes Doris, a case where “the death-dealing act was committed by

one participating in the felony,” Redline, 137 A.2d at 481.       Accordingly,

even if the issue of the Commonwealth’s reliance on Doris were properly

before us, we would find no merit to Rodriguez’s argument.




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      However, our Supreme Court has held that “once a defendant has

gone to trial and has been found guilty of the crime or crimes charged, any

defect in the preliminary hearing is rendered immaterial.” Commonwealth

v. Sanchez, 82 A.3d 943, 984 (Pa. 2013).           Therefore, we conclude that

Rodriguez is not entitled to review of the Commonwealth’s reference to

Doris at the preliminary hearing. For the same reason, Rodriguez’s claim

that the trial court erred by refusing to reverse the preliminary hearing

court’s finding of a prima facie case is unreviewable.

      Rodriguez next argues that the trial court erred when addressing his

complaint    that   the   prosecutor   violated   his   due   process      rights   by

“intentionally   [eliciting]   inflammatory   testimony       from   the     forensic

pathologist containing gruesome details, with photos cumulative to the

forensic pathologist[’s] testimony, as to the injuries and cause of death.”

Rule 1925(b) Statement, 9/22/14, at IV.             He further asserts that in

addressing the issue, the trial court mischaracterized the pathologist’s

testimony.

      In its Rule 1925(a) opinion, the court noted:

      [Rodriguez’s] second claim lacks merit. The medical examiner’s
      testimony explained the factors contributing to the deaths of the
      decedents in a clinical manner, and the testimony was necessary
      to establish that the deaths were the result of homicide. The
      Commonwealth elicited this testimony to establish [Rodriguez’s]
      causal role in the deaths.

                                       ...

      All of the decedents were autopsied; the autopsy reports were
      admitted into evidence and Dr. Collins testified at trial. Dr.

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      Collins’ testimony and the autopsy reports established that all
      four decedents died of multiple blunt impact injuries consistent
      with being struck by a vehicle travelling at high speed. In his
      testimony, Dr. Collins listed the injuries sustained by each
      decedent respectively, and at the conclusion of the explanation
      of the body of each decedent, he briefly showed a black and
      white photo that depicted the body. The Commonwealth did not
      engage Dr. Collins in questioning that extended his testimony
      past the factual recitation of the state that the bodies were in, or
      his conclusion as to their causes of death.          However, the
      information elicited was necessary to meet the Commonwealth’s
      burden of proof. The Commonwealth did not ask Dr. Collins to
      repeat injuries suffered, and did not ask questions that required
      Dr. Collins to dwell on specific injuries. A criminal homicide trial
      is, by its very nature, unpleasant, and the light in which the
      medical examiner depicted the bodies of the decedents did not
      cloud an objective assessment of the guilt or innocence of
      [Rodriguez] by the jury.

Trial Court Opinion, 3/3/15, at 8-9 (citations omitted).

      We have reviewed the testimony of Dr. Collins and conclude that there

is no merit to Rodriguez’s claim that the trial court “altered the language in

the court’s record of the proceeding.” Appellant’s Brief, at 4. Rather, the

trial court accurately summarized Dr. Collins’ testimony when addressing

Rodriguez’s claim that the Commonwealth elicited inflammatory statements

from the medical examiner.

      “It is well established that the admissibility of evidence is within the

discretion of the trial court, and such rulings will not form the basis for

appellate relief absent an abuse of discretion.” Commonwealth v. Hoover,

107 A.3d 723, 729 (Pa. 2014) (citation omitted). Here, we discern no such

abuse.




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     In his discussion of the inflammatory nature of Dr. Collins’ testimony,

Rodriguez refers to the post-mortem photographs of the decedents and

reviews the admissibility of photographs in homicide cases. However, as the

Commonwealth notes, the photographs are not included in the certified

record. Commonwealth’s Brief, at 8-9. In Commonwealth v. Powell, 956

A.2d 406 (Pa. 2008), our Supreme Court held that where an appellant

challenges the admissibility of photographs and the record does not contain

the photographs, we cannot assess his claim. Accordingly, Rodriguez’s claim

is waived.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2015




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