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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JULIO ANGEL ORTIZ-LUGO,                 :         No. 1015 MDA 2015
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, April 29, 2015,
               in the Court of Common Pleas of Berks County
             Criminal Division at No. CP-06-CR-0000797-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 01, 2016

     Julio Angel Ortiz-Lugo appeals from the judgment of sentence in which

he was sentenced to serve a term of life imprisonment for first degree

murder, was concurrently sentenced to a term of life imprisonment for

second degree murder, and concurrently sentenced to a term of one to five

years for possession of instruments of crime.1 Appellant received credit for

488 days time served. He was also ordered to pay costs of $8,139.75.

     On November 16, 2013, Aida Flores (“Flores”), the lessee of 504 Minor

Street in the City of Reading, Pennsylvania, hosted a number of people. Her

son Brandon Troncoso (“Troncoso”); and daughter, Nayaliz Flores; her



* Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. § 2502(A), 18 Pa.C.S.A. § 2502(B), and 18 Pa.C.S.A. § 907
respectively.
J. S14011/16


boyfriend, appellant; Lizmar Torres (“Torres”); and Juan Carlos Lopez Bonilla

(“Bonilla”). That day, Flores and appellant had a disagreement. Flores told

appellant to leave.    (Notes of testimony, 3/16-18/15 at 114-115.)      That

evening, Flores invited her nephew, Jaxel Flores, over to have pizza and

spend the night. (Id. at 122.)

        At approximately 10:00 or 11:00 p.m., Flores left her house to meet

her godmother and have a few drinks.          When she returned home at

approximately 3:00 a.m., only Torres and Bonilla were awake.            Torres

prepared some food and then went upstairs to her bedroom where her

children were sleeping. Torres then fell asleep herself. (Id. at 121-123.)

        Later, Troncoso woke up Torres, by screaming, “Dundy, what are you

doing here?”2    (Id. at 123.)   Apparently, appellant entered the house by

breaking and entering through a bathroom window.          Appellant grabbed

Torres’ phone and ran downstairs. Troncoso followed him. After checking

on the safety of her daughter, Torres went downstairs. She saw a bloody

Bonilla on the sofa asking for help. Appellant was no longer in the house,

and the front door was open.          (Id. at 127-129.)     The police were

summoned.       Bonilla soon died.   The police interviewed Flores, and she

admitted that appellant was her ex-boyfriend.         The videotape of this

interview was subsequently played at appellant’s trial. (Id. at 150.)




2
    Appellant was also known as “Dundy.”


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      Appellant   was    arrested   and   charged   with   first,    second,    and

third-degree murder, burglary, two counts of aggravated assault, and

possession of the instruments of a crime.

      Appellant’s trial commenced on December 4, 2014.              Torres testified

that she came to live with Flores after she was evicted and that she lived on

the third floor of the house.   (Id. at 80.)   Torres testified that at around

3:00 or 4:00 a.m. on November 17, 2013, she got up to get milk for her

child. She saw appellant and Bonilla fighting in the living room. She did not

see any weapons but noticed that there was blood on Bonilla’s sweatshirt,

appellant’s sweatshirt, and appellant’s left hand.     (Id. at 82-84.)          The

Commonwealth introduced a videotape of Torres’ interview with the Reading

Police on November 17, 2013, in which she stated that appellant had a knife

which she described and demonstrated a stabbing motion. (Id. at 95.)

      Jaxel Flores testified that he was at Flores’ house on the night of the

killing. He went to bed at between 2:00 to 3:00 a.m. (Id. at 36, 39.) He

was awakened sometime later when he heard glass breaking. He then heard

Torres screaming, “Dundy, no, don’t do it.” (Id. at 40-41.)

      Troncoso, who was 12 years old at the time of trial, testified that

Bonilla stayed at his house for about three or four days because he was a

friend of appellant’s.   Appellant left the house that day because he and

Flores were fighting. (Id. at 53.) That night, Troncoso went to bed in his

mother’s room at approximately 1:30 or 2:00 a.m. He, his sister, and his



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mother were sleeping in that room.       He woke up when he heard glass

breaking in the bathroom. Troncoso then saw appellant running downstairs

after appellant took Flores’ phone. (Id. at 55.) Troncoso went downstairs

and saw Bonilla with “blood all over the couch, on him, on his head, his

hair.” (Id. at 58.) Troncoso saw appellant leave and throw a knife down a

drain outside.   (Id. at 58.)   In the midst of cross-examination, Troncoso

stated, “I want to go. I don’t want to be here no [sic] more.” (Id. at 67.)

After a brief recess, Troncoso continued with his father, Anthony Troncoso,

standing behind him while he was on the witness stand.          (Id. at 73.)

Troncoso admitted that when he was interviewed by the police, he did not

mention a knife. (Id. at 76.)

     Officer Charles Federico (“Officer Federico”) of the Reading Police

Department testified that he responded to the call for a stabbing at Flores’

residence. When he arrived, Officer Federico saw blood on the front door,

Bonilla lying in a pool of blood, and two adults and five children. Troncoso

told Officer Federico that Bonilla was the victim and that his “mom’s

ex-boyfriend [appellant]” stabbed him.      (Id. at 154-156.)    Torres told

Officer Federico that appellant and Bonilla had an argument and “he

[appellant] pulled out a knife and began to stab him.” (Id. at 158.)

     Other testimony included evidence that blood samples in the bathroom

window, hallway, entrance way at Flores’ house, and along the sidewalk

along the front door of the house were tested for DNA which indicated that



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the blood belonged to appellant.      (Id. at 230-237.)     Neil Hoffman, M.D.

(“Dr. Hoffman”), a forensic pathologist, testified that Bonilla’s death was

caused by a penetrating stab wound that penetrated between the fifth and

sixth ribs and into the pericardial sac and the left ventricle of the heart. (Id.

at 247-249.)     On cross-examination, Dr. Hoffman also testified that the

wounds occurred during the course of a struggle. (Id. at 261-262.)

      On March 18, 2015, the jury found appellant guilty of all charges. On

April 29, 2015, the trial court issued its sentence.

      On May 8, 2015, appellant filed a post-sentence motion and sought a

new trial and/or arrest of judgment and/or judgment of acquittal. Appellant

alleged the following:

            1.    The verdicts are contrary to law.

            2.    The verdicts are contrary to the evidence.

            3.    The verdicts are contrary to the weight of the
                  evidence.

            4.    The evidence was insufficient to sustain the
                  verdicts of guilty.

            5.    The verdict of guilty to all counts of the
                  information is contrary to the law, the
                  evidence, the weight of the evidence, and the
                  evidence is insufficient to sustain a verdict of
                  guilty, and defendant is otherwise entitled to
                  appropriate legal relief, for the following
                  reasons:

                  (a)    [Appellant] avers that given the
                         equivocal and contradictory nature
                         of the testimony of the witnesses
                         presented by the Commonwealth,


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                       unsupported or corroborated by
                       forensic evidence that the verdicts
                       as to the homicide/assault are
                       against the weight of the evidence.

                 (b)   The       Commonwealth        lacked
                       sufficient admissible, reliable and
                       credible evidence of identification
                       that showed the defendant was in
                       fact the perpetrator.

                 (c)   [Appellant] avers that the weight of
                       the evidence may have established
                       burglary and theft charges and
                       thus his presence at the scene.
                       However, the evidence as to his
                       involvement           in        the
                       homicide/assault    was    undercut
                       where [,] although [Appellant’s]
                       blood was all over the house [,]
                       none was apparently present on or
                       about the body of the deceased.

Appellant’s post-sentence motion, 5/8/15 ¶¶1-5 at 1-2.

     By order dated May 14, 2015, the trial court denied the motion.

     Before this court, appellant raises the following issues:

           A.    Did the trial court err in failing, sua sponte, to
                 conduct a competency examination for a child
                 witness under the age of fourteen (14), make
                 an independent determination of competency
                 and make a specific finding that the witness
                 possessed: (1) a capacity to communicate
                 including both an ability to understand
                 questions and to frame and express intelligent
                 answers; (2) the mental capacity to observe
                 the actual occurrence and the capacity of
                 remembering what it is that he or she is called
                 to testify about; and (3) a consciousness of the
                 duty to speak the truth; thereby undercutting
                 the truth determining process of the jury trial;
                 therefore a new trial should be granted?


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            B.    Did the trial court err in denying Defendant’s
                  post sentence motion for a new trial as the
                  verdicts were against the weight of the
                  evidence, especially in light of the court’s
                  failure to conduct a competency determination
                  of the Commonwealth’s most important
                  witness, a child under fourteen (14) years of
                  age, and in light of [the] development that
                  during the child’s testimony the child’s
                  biological father directing the child off the
                  stand during cross-examination and was then
                  allowed to sit with the child after the child
                  re-took the stand raising issues of undue
                  influence and taint; therefore a new trial
                  should be granted?

            C.    Was there insufficient, competent evidence to
                  support the verdicts of guilty as to the
                  homicide counts of the information where the
                  primary exculpatory witness was a child under
                  fourteen (14) and no competency examination
                  was conducted? (Capitalization omitted).

Appellant’s brief at 7-8.

      Before addressing the merits of appellant’s arguments, this court must

address the claim of the Commonwealth that appellant waived these issues

when he did not raise them at trial.

      Pa.R.A.P. 302(a) provides that only issues properly raised and

preserved in the trial court will be considered on appeal.

      This court has long held that “[a] claim which has not been raised

before the trial court cannot be raised for the first time on appeal.”

Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000) (citing

Commonwealth         v.     Gordon,    528   A.2d   631      (Pa.Super.   1987)).



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Furthermore, it is well established that trial courts must be given an

opportunity to correct any errors when they occur.                   A party may not

complain of matters at a later time, when the party did not object at a time

when     the   trial    court     could        have   corrected   the   alleged   error.

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.Super. 2008).

       A review of the record reveals that appellant did not request a

competency hearing or otherwise object when Troncoso took the stand.

Further, appellant lodged no objection when the trial court allowed

Troncoso’s     father   to      stand     or    sit   behind   him   when   Troncoso’s

cross-examination resumed after he said that he could not continue.

Appellant also did not raise this issue in his post-sentence motion.

       Although the trial court did address the merits of appellant’s claims in

its opinion, the trial court did state, “Additionally, it must be mentioned that

Appellant’s counsel ‘never’ requested a competency hearing for the twelve

(12) year old child witness at ‘any time’ during this case and bears the

consequences of that decision.”                 (Trial court opinion, 9/10/15 at 6

(emphasis in original).)

       We agree with the Commonwealth that appellant failed to properly

preserve his challenge to the testimony of Troncoso. Appellant raises three

issues before this court. All three relate to the issues of whether the trial

court erred when it did not hold a competency hearing and whether

Troncoso’s father should have been permitted to be as close to Troncoso



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during his cross-examination.   As a result, appellant has waived all issues

before this court, and we need not address the merits of his appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/1/2016




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