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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                        :
KELVIN MONTERO,                         :          No. 1452 EDA 2014
                                        :
                        Appellant       :


          Appeal from the Judgment of Sentence, December 20, 2013,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0000977-2012


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 08, 2015

      This is a direct appeal from the judgment of sentence entered

December 20, 2013, in the Court of Common Pleas of Philadelphia County

following Kelvin Montero’s convictions of first-degree murder, carrying a

firearm without a license, and possessing an instrument of crime. 1        We

affirm.

      The facts, as aptly summarized by the trial court, are as follows:

                  In the early morning hours of September 26,
             2011, 16-year-old Jesus Rivera (Jesus) was still out

1
  On July 22, 2013, appellant was tried for the charges of murder,
conspiracy to commit murder, carrying a firearm without a license, and
possessing an instrument of crime; appellant was found guilty of conspiracy
to commit murder and sentenced to a term of 18 to 40 years of
imprisonment. A mistrial was declared as to the remaining three charges.
Appellant was retried for those three crimes at the instant trial, which began
on December 17, 2013. An appeal is pending before this court concerning
the conviction of conspiracy at No. 452 EDA 2014
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          celebrating the Puerto Rican Day Parade in his
          Philadelphia neighborhood when he was struck and
          killed by two stray gunshots fired by Kelvin Montero
          (the defendant). After the parade, which had taken
          place on September 25, 2011, people were
          celebrating all along the area of 5th and Cambria
          Streets, congregating on street corners, playing
          music, and hanging out in and around their vehicles.
          This was the unofficial parade “after party.”

                It was at the Puerto Rican Day Parade after
          party that the defendant fought with his girlfriend in
          front of a street of witnesses, and punched Saul
          Rodriguez (Rodriguez) in the face.[Footnote 5] At
          approximately 8:30 P.M., Rodriguez was standing
          near a black Lincoln Town Car full of girls, when the
          defendant walked up to the car, pulled his girlfriend,
          Cynthia Vasquez (Vasquez), out of it, and dragged
          her     down     the   street.        Angel     Ducvo
          (Ducvo)[Footnote 6]    and     Rodriguez    saw    the
          defendant strike Vasquez. After bystanders tried to
          intervene, a fight ensued but was broken up by the
          police. Later, the defendant punched Rodriguez in
          the face when Rodriguez was trying to talk to the
          girls from the Lincoln Town Car again.           After
          Rodriguez was punched, John Perez,[Footnote 7]
          who was described as a bald-headed, tattooed man,
          got out of a burgundy red pickup truck and
          approached Rodriguez, yelling: “you all don’t know
          who you’re messing with. That’s my boy. We’ll be
          back. You don’t know who you’re fucking with.”

                [Footnote 5]    Rodriguez    provided    a
                statement about this encounter to
                Detective Joseph Bamberski.        Exhibit
                C-19. When Rodriguez was called to
                testify, he recanted his prior statement.
                Rodriguez admitted that the signature on
                the statement appeared to be his, but
                stated that he did not remember signing
                it. Rodriguez’s account of the events of
                September 25, 2011 was admitted for its
                truth     pursuant    to     Brady/Lively.
                Commonwealth v. Brady, 71 A.2d 34, 36


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               (Pa.Super. 1987); Commonwealth v.
               Lively, 703 A.2d 467 (Pa.Super. 1997).

               [Footnote 6] Angel Ducvo’s nickname is
               “Abo.” At trial, Ducvo denied telling the
               truth in the statement he made when he
               was brought into the Homicide Unit on
               September 28, 2011.       Exhibit C-20.
               Ducvo’s prior statement was also
               admitted for its truth pursuant to
               Brady/Lively.

               [Footnote 7] Perez was initially charged
               as a co-defendant. On July 15, 2013,
               Perez entered a negotiated guilty plea to
               murder of the third degree (F-1),
               criminal conspiracy (F-1), and persons
               not to possess firearms (F-2). 18 Pa.C.S.
               §§ 2502(c), 903, and 6105(a)(1),
               respectively. Per the negotiations, this
               Court sentenced Perez to an aggregate
               term of not less than 22-and-a-half years
               nor more than 45 years[‘] imprisonment.

                 Later that night, after 12 A.M., Angel Figueroa
          (Figueroa), who had also witnessed the earlier fight,
          saw the defendant and Perez again at 5th and
          Cambria Streets. The defendant was wearing black
          boots and a black hooded sweatshirt, and asked
          Figueroa for the man who was fighting earlier.
          Figueroa testified that the defendant had his hands
          under his sweatshirt, as if to indicate that he had a
          gun on him.             A short time later, the
          defendant[Footnote 8] opened fire, firing 30 shots in
          all directions.[Footnote 9]

               [Footnote 8] Keyshla Rivera, Jesus’s
               sister, identified the defendant as the
               shooter.     Ducvo also identified the
               defendant as the shooter pursuant to a
               photo array compiled by the police.
               During the shooting, Ducvo did not
               actually see the shooter’s face, but he
               was able to recognize the defendant as


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               the shooter based on their earlier
               encounter on Westmoreland Street
               20 minutes before the shooting began.

               [Footnote 9] At the crime scene, 30 fired
               cartridge casings (FCCs) were found. At
               12:40    A.M.    Officer  Brian   Waters
               responded to a call at 5th and Cambria
               Streets to look for a burgundy Ford
               F-150 pickup truck.      Officer Waters
               stopped the truck, which was being
               driven by Perez. The Ford pick-up was
               taken in to the police station as
               evidence. A later search of the truck
               revealed a Glock 9mm handgun in a
               hidden compartment on the right side of
               the front dashboard. Additionally, two
               handgun magazines were found: one
               empty 30-round magazine and another
               full   15-round    magazine.      Officer
               Lawrence Flagler, a ballistics expert,
               determined that all 30 FCC’s were fired
               from the 9mm handgun found in that
               truck.

                 After midnight on September 26, 2011, Jesus
          and his sister Keyshla Rivera (Keyshla) were
          standing on the corner of 5th and Cambria Streets,
          waiting for Keyshla’s friend to pick them up, when
          they heard people shouting, “they’re shooting!”
          Upon hearing the gunshots, Keyshla glanced in the
          direction of the commotion, and witnessed the
          defendant in all black, “shooting like crazy” down the
          street.    Keyshla and Jesus ran in the opposite
          direction of the shooter down Fairhill Street,
          attempting to seek safety inside two homes. After
          being turned away from the two homes on Fairhill
          Street, Keyshla told her brother to duck down behind
          two cars for cover.       Finally, after the shooting
          ceased, Keyshla noticed her brother, Jesus, on the
          ground screaming for help. Jesus was struck by two
          bullets, one to the right side of his chest that went
          through his heart and lungs, and a second to the
          right upper arm.[Footnote 10]


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             [Footnote 10] Associate Medical Examiner, Dr. Aaron
             Rosen, testified that one of the bullets penetrated
             the right side of Jesus’s body below his armpit. This
             bullet passed through the thoracic cavity and Jesus’s
             right lung, causing internal bleeding.     Dr. Rosen
             stated that the other bullet was retrieved in the
             upper right arm and fractured Jesus’s humerus.

                   The search for the defendant commenced on
             September 28, 2011, after an arrest warrant had
             been issued. On November 1, 2011, Detective Burke
             found the defendant on the second floor of a home in
             the Hunting Park neighborhood of Philadelphia, and
             he was arrested.

Trial court opinion, 10/29/14 at 2-4 (citations to the notes of testimony

omitted).

      Appellant was sentenced to life imprisonment for first degree murder.2

On December 27, 2013, a timely post sentence motion was filed; the motion

was denied on April 23, 2014. On May 9, 2014, a timely notice of appeal

was filed.

      Herein, appellant presents the following two issues for our review:

             1)   Whether the evidence was insufficient to
                  support the verdict of guilt as to the charge of
                  first degree murder for lack of specific intent to
                  kill[?]

             2)   Whether the verdict was against the weight of
                  the evidence as to the conviction for first

2
  The sentence for murder in the first degree was ordered to run concurrent
with the sentence imposed on September 10, 2013 for conspiracy. As to the
charge of carrying a firearm without a licesne, appellant was sentenced to a
concurrent term of two to seven years’ imprisonment; as to the charge of
PIC, appellant was sentenced to a concurrent term of one to five years’
incarceration.


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                   degree murder, as the crime scene facts
                   indicate that the shooter aimed at a car, which
                   conduct is evidence of reckless endangerment
                   of other people, but not evidence of specific
                   intent to kill[?]

Appellant’s brief at 4.

      We begin by reviewing the sufficiency of the evidence for appellant’s

first-degree murder conviction. “To obtain a first-degree murder conviction,

the Commonwealth must demonstrate that a human being was unlawfully

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

malice and a specific intent to kill.”   Commonwealth v. Montalvo, 986

A.2d 84, 92 (Pa. 2009), citing Commonwealth v. Kennedy, 959 A.2d 916,

920 (Pa. 2008); 18 Pa.C.S.A. § 2502(a).        Specific intent to kill can be

established through circumstantial evidence, such as the use of a deadly

weapon on a vital part of the victim’s body. Commonwealth v. Rega, 933

A.2d 997, 1009 (Pa. 2007).

      We conclude, without hesitation, that when viewed in the light most

favorable to the Commonwealth as verdict winner, the evidence is sufficient

to support appellant’s conviction of first-degree murder.       The evidence

clearly suggests a presence of mind belying appellant’s contentions he

lacked specific intent.   A day prior to the shooting, appellant’s accomplice

shouted, “you all don’t know who you’re messing with. That’s my boy. We’ll

be back.   You don’t know who you’re fucking with.”     (Notes of testimony,

12/17/14 at 155.) Twenty minutes before the shooting, Figueroa witnessed



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appellant and his cohort, Perez, looking for the men they had fought earlier.

Figueroa testified appellant had his hands under his sweatshirt, as if to

indicate that he had a gun. (Id. at 165-166.) A short time later, appellant

fired 30 shots, in all directions, down a street that was populated with

people celebrating the Puerto Rican Day Parade. (Id. at 173.) Viewed in

the light most favorable to the Commonwealth as the verdict winner, the

evidence was sufficient to support a finding that Rivera was unlawfully killed,

appellant killed him, and he acted with malice and specific intent to kill. See

Commonwealth v. Smith, 861 A.2d 892 (Pa. 2004) (where appellant,

along with his co-conspirator, fired multiple shots into crowd of people

gathered outside club and one bullet struck and killed victim, evidence was

clearly sufficient to sustain first-degree murder conviction, regardless of who

fired fatal shot); Commonwealth v. Gibson, 688 A.2d 1152 (Pa. 1997)

(where defendant and co-conspirators went into crowded bar with intent of

committing robbery, fired shots into crowd, and killed two patrons, such

evidence supported first-degree murder conviction, regardless of who fired

fatal shots). No relief is due.

      Next, appellant contends that his first-degree murder conviction was

against the weight of the evidence, again disputing the jury’s determination

that he possessed specific intent to kill. (Appellant’s brief at 13-166.) Our

standard of review is as follows:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question


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            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.

            This does not mean that the exercise of discretion by
            the trial court in granting or denying a motion for a
            new trial based on a challenge to the weight of the
            evidence is unfettered. In describing the limits of a
            trial court’s discretion, we have explained[,] [t]he
            term ‘discretion’ imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is
            not exercised for the purpose of giving effect to the
            will of the judge. Discretion must be exercised on
            the foundation of reason, as opposed to prejudice,
            personal motivations, caprice or arbitrary actions.
            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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

      Appellant’s weight of the evidence argument is grounded in his theory

that his aggression was directed at the car struck by some of the bullets he

fired rather than at others in range of the gunfire, especially Rivera. This

contention amounts to an assertion that his version of events should have



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been credited over the Commonwealth’s.        In declining to find that the

conviction was against the weight of the evidence, the trial court found the

verdict reached was not so contrary to the evidence as to shock one’s sense

of justice.   (Trial court opinion, 10/29/14 at 5-6.)   We find no abuse of

discretion in such a conclusion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




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