J-S39008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MIGUEL A. TORRES

                            Appellant                 No. 625 MDA 2015


         Appeal from the Judgment of Sentence Entered March 9, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No: CP-06-CR-0000183-2014


BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 21, 2016

        Appellant, Miguel A. Torres, appeals from the March 9, 2015 judgment

of sentence imposing life in prison without the possibility of parole for the

murder of his wife, Barbara Torres. We affirm.

        The murder occurred on September 12, 2005 in the parking lot behind

the Wachovia Bank branch in Reading, Pennsylvania, where the victim and

Josefa Delosreyes (“Delosreyes”) worked together at adjacent teller desks.

N.T. Trial, 1/26/2015–2/2/2015, at 70-72. Delosreyes and the victim were

conversing on their way to their parked vehicles after completing their work

for the day. Id. at 78. The victim’s vehicle was a white Cadillac Escalade

registered to Appellant and the victim. Id. at 755. Shortly after Delosreyes
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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and the victim parted to walk to their respective vehicles, Delosreyes heard

the victim scream, “Mikey.”    Id. at 79-80. Delosreyes heard one gunshot

and then observed, in her rearview mirror, the victim attempting to flee. Id.

at 80-81.     Instead, the victim fell, and Delosreyes observed Appellant

standing and firing a second shot at close range at the victim’s head. Id. at

82. Delosreyes was acquainted with Appellant, as she had Christmas dinner

with Appellant and the victim in 2004. Id. at 73, 100-01. Delosreyes also

saw Appellant two weeks before the murder. Id. at 73. Appellant departed

from the scene in the Torres’ Escalade. Id. at 83.

     Police found the Escalade parked several blocks from the scene of the

murder.     Id. at 286.   Inside the vehicle was a nine-millimeter handgun

Appellant purchased in 1998.    Id. at 758. Forensics testing revealed that

bullet casings found at the scene were fired from that gun. Id. at 350. The

Escalade’s driver’s side door and running board were stained with blood. Id.

at 287-88, 300.

     Earlier on the day of the murder, Appellant rented a conversion van

with a sleeper in it. Id. at 534-43. Appellant never returned the van to the

rental car company. Id. at 544. Authorities later found the van abandoned

at LaGuardia Airport in New York.     Id.   Appellant fled to the Dominican

Republic, where he remained until 2010. Id. at 940-41. In 2010, he moved

from the Dominican Republic to Italy.       Id.   According to a Dominican

Republic passport and a Dominican Republic voter identification card,


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Appellant assumed the name “Rene Rondon.”             Id. at 754-56.     Italian

authorities apprehended Appellant in March of 2013.         Id. at 749-50.    A

Berks County Assistant District Attorney and several United States Marshals

traveled to Italy and took custody of Appellant in November of 2013. Id. In

between the crime and Appellant’s apprehension, Appellant underwent

plastic surgery to change his fingerprints. Id. at 802-03, 938-40. Appellant

also had his nose altered by plastic surgery, and lost significant weight. Id.

at 74, 938-40.

      On February 2, 2015, after a lengthy trial, a jury found Appellant

guilty of first and third degree murder, aggravated assault, and related

offenses. On December 17, 2015, the trial court sentenced Appellant to life

in prison without the possibility of parole.      This timely appeal followed.

Appellant raises five questions for our review:

      1. Whether the trial court erred and/or committed an abuse of
         discretion depriving [Appellant] of his right to due process,
         his rights under the Confrontation Clause, and/or to a fair trial
         by granting the Commonwealths’ Motion in Limine, allowing
         the Commonwealth to introduce hearsay evidence of alleged
         incidences of domestic abuse or violence through several
         witnesses that were extremely prejudicial, outweighed by any
         probative value and should not have been admitted and
         furthermore the evidence presented at trial exceeded side bar
         proffers and the proposed evidence contained in the
         Commonwealth’s Motion in Limine?

      2. Whether the trial court erred and/or committed an abuse of
         discretion depriving [Appellant] of his right to due process,
         his rights under the Confrontation Clause, and/or to a fair trial
         by allowing the Commonwealth to introduce the contents of a
         PFA Petition that was not written by the alleged victim, but in
         fact by the alleged victim’s sister concerning alleged

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         incidences of domestic abuse or violence that the witness had
         no firsthand knowledge of, was the product of hearsay and/or
         were extremely prejudicial, outweighed by any probative
         value and should not have been admitted?

      3. Whether [Appellant] was denied a fair trial by the trial court
         allowing the Commonwealth to rehabilitate it’s [sic] witness,
         Eugene Deren, who identified the prosecuting police officer as
         the person who committed the murder, by further directing
         the Commonwealth to pull up Exhibit #26 (a picture of
         [Appellant]) again and facilitating a tainted in court
         misidentification thereby warranting a new trial?

      4. Whether the verdict was against the weight of the evidence
         presented by the Commonwealth in their case in chief and
         was insufficient as a matter of law to establish [Appellant’s]
         guilt beyond a reasonable doubt, given the extremely
         contradictory, inconsistent, biased and patently unreliable
         testimony of the Commonwealth witnesses who had a vested
         interest in the outcome of the trial, failed to identify
         [Appellant] as the shooter, and/or established facts that
         [Appellant] could not be the shooter, thereby warranting a
         judgment of acquittal and/or new trial.

      5. Whether the trial court erred and/or committed an abuse of
         discretion depriving [Appellant] of his right to due process,
         his rights under the Confrontation Clause, and/or to a fair trial
         by granting the Commonwealths’ Motion in Limine, allowing
         the Commonwealth to introduce hearsay evidence of alleged
         incidences of domestic abuse or violence through Josefa
         Delosreyes that were extremely prejudicial, outweighed by
         any probative value and should not have been admitted.

Appellant’s Brief at 7-8.

      In his brief, Appellant analyzes issues one, two, and five together. We

will do the same. Each of these issues challenges the admission of evidence.

Admission of evidence rests within the sound discretion of the trial court,

and we will not reverse absent an abuse of discretion. Commonwealth v.

Flor, 998 A.2d 606, 623 (Pa. 2010), cert. denied, 563 U.S. 941 (2011).


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“[A]n abuse of discretion is not merely an error of judgment.                 Rather,

discretion is abused when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by the evidence or the record.” Id. at

620.

       Several deficiencies in Appellant’s brief hamper our review of this

issue. Appellant’s questions presented pertain to a PFA petition the victim’s

sister helped her fill out, Delosreyes’ testimony, and other hearsay evidence.

Appellant cites the Commonwealth’s motion in limine, but he does not

develop any legal argument pertaining to any item in that motion.

Appellant’s Brief at 9.         Appellant simply states that a “review of the

Reproduced Record in the case at bar, clearly establishes the improper

admission      of   evidence      regarding      [Appellant’s]   alleged   tumultuous

relationship with Barbara Torres.” Appellant’s Brief at 19. Appellant limits

his legal argument to basic principles of evidence admissibility. Appellants’

Brief at 17-18.1 Appellant does not address the relevance, probative value,

or potential unfair prejudice of any specific evidence.

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1
  The Commonwealth argues the victim’s statements were admissible under
the forfeiture by wrongdoing doctrine, citing Giles v. California, 554 U.S.
353 (2008). The trial court relied in part on Crawford v. Washington, 541
U.S. 36 (2004), wherein the Supreme Court held that the Confrontation
Clause prohibits admission of testimonial hearsay from an unavailable
witness. Appellant does not cite either case or develop any argument
regarding these doctrines.



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      The Pennsylvania Rules of Appellate Procedure require appellants to

support their arguments with citations to pertinent legal authority and

pertinent portions of the record. Pa.R.A.P. 2119(b) and (c). Failure to do so

results in waiver. Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa.

Super. 2008).

             The court will not become the counsel for an appellant, and
      will not, therefore, consider issues ... which are not fully
      developed in his brief. Failing to provide factual background and
      citation to the record represent[s] serious deviations from the
      briefing requirements of the Rules of Appellate Procedure.
      Because such an omission impedes on our ability to address the
      issue on appeal, an issue that is not properly briefed in this
      manner is considered waived.

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006) (internal

citations and quotation marks omitted).       Appellant’s failure to cite legal

authority and record citations pertinent to any specific evidence renders his

claim unreviewable and waived.

      Appellant’s third argument is that the trial court erred in permitting the

Commonwealth to rehabilitate eyewitness Eugene Deren (“Deren”) after

Deren failed to identify Appellant at trial. The record reflects the following:

           [Prosecutor]: Sir, the person you saw holding the woman
      and holding the gun and the person who drove the Escalade
      away, was that the same person or a different person?

            [Deren]: Same person.

           [Prosecutor]:    Do you see that person in the courtroom
      today?

            [Deren]: Do you want me to just walk over to him? Yeah,
      right here.


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            [Prosecutor]: This individual here?

            [Deren]: Yeah.

             [Prosecutor]: Let me show you Commonwealth Exhibit No.
      26, sir.

            [Defense counsel]: Objection , Your Honor, of him trying
      to rehabilitate his own witness.

            [Prosecutor]: Well, Judge, under the law you’re allowed to
      do that, and it’s certainly not redundant.

            The Court: Overruled.

            [Prosecutor]: The person in this photo, do you recognize
      that person?

            [Deren]: That’s the person I really saw. It’s a better
      picture of what I saw, without the glasses, you know, the more
      body filled up, a little more firm in the face.

N.T. Trial, 1/26/2015–2/2/2015, at 181. Thus, Deren initially identified the

prosecuting police officer as the defendant, and then identified Appellant

from a photograph introduced as Commonwealth Exhibit 26.          Deren later

claimed his eyes were watery when he identified the police officer rather

than Appellant. Id. at 184-85. On cross-examination, Deren simply said he

was mistaken. Id. at 186.

      Once again, Appellant cites no law in support of his argument,

resulting in waiver under Pa.R.A.P. 2119(b). Appellant seemingly concedes

that the Commonwealth was entitled to refresh Deren’s recollection as to his

prior identification of Appellant (see Appellant’s Brief at 19), but Appellant

argues that the prior identification was tainted because Deren identified




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Appellant only after observing Appellant’s picture in a newspaper.            The

record does not support Appellant’s contention:

               [Defense Counsel]: Mr. Deren, you don’t know who the
        gunman was? You only read something in the newspaper and
        that’s who you believe it is?

              [Deren]: No, I was there. I saw what happened. I saw
        who was there with a gun. [Appellant] is the person with the
        gun (indicating). I saw him holding the woman.

N.T. Trial, 1/26/2015–2/2/2015, at 197.

        Furthermore, any trial court error was harmless beyond a reasonable

doubt.2 The record evidence in support of Appellant’s guilt is overwhelming.

As summarized above, the record indicates that Delosreyes knew Appellant

and the victim and identified Appellant without any doubt. Furthermore, the

record contains ballistics evidence matching the shell casings to Appellant’s

gun. The record also contains evidence that Appellant rented a conversion

van on the morning of the murder.                That van was later abandoned at

LaGuardia Airport. Appellant fled the United States for eight years, living in

the Dominican Republic and then Italy.            During that time, he changed his

appearance by losing considerable weight and having plastic surgery on his

nose.     Deren did not know Appellant prior to the murder, and Deren
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2
  “A harmless error analysis requires a determination by the appellate court
that the uncontradicted evidence of guilt is so overwhelming and that the
prejudicial effect of the error is so insignificant by comparison that it is clear
beyond a reasonable doubt that the error is harmless.” Commonwealth v.
Rasheed, 640 A.2d 896, 899 (Pa. 1994).




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observed Appellant for several seconds. At the time of trial, Deren had not

seen Appellant for eight years, during which time Appellant altered his

appearance through plastic surgery to his nose and significant weight loss.

Appellant’s third argument does not merit relief.

      Finally, we must consider Appellant’s challenges to the weight and

sufficiency of the evidence. Appellant offers overlapping arguments on these

doctrines. As we have often explained, a challenge to the sufficiency of the

evidence is distinct from a challenge to the weight of the evidence:

             The distinction between these two challenges is critical. A
      claim challenging the sufficiency of the evidence, if granted,
      would preclude retrial under the double jeopardy provisions of
      the Fifth Amendment to the United States Constitution, and
      Article I, Section 10 of the Pennsylvania Constitution, whereas a
      claim challenging the weight of the evidence if granted would
      permit a second trial.

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim the court is required to view the evidence in the
      light most favorable to the verdict winner giving the prosecution
      the benefit of all reasonable inferences to be drawn from the
      evidence.

             A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence, concedes that there is
      sufficient evidence to sustain the verdict. Thus, the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a


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      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. A trial judge
      must do more than reassess the credibility of the witnesses and
      allege that he would not have assented to the verdict if he were
      a juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004)

(quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)).

When the trial court denies a motion for a new trial based on weight of the

evidence, we review the trial court’s decision for abuse of discretion.

Commonwealth v. Rivera, 983 A.2d 1211,1225 (Pa. 2009).

      Once again, Appellant’s brief is very short on specifics. He argues that

the Commonwealth’s witnesses were “contradictory, inconsistent, and

biased” without explaining the basis for these assertions. He also does not

explain which element or elements of his convictions the Commonwealth

failed to prove. Appellant’s Brief at 20-22. As we already have explained,

Delosreyes’ eyewitness account, Deren’s eyewitness account, the ballistics

evidence, and Appellant’s subsequent flight are more than sufficient to

sustain his murder conviction.     Concerning the weight of the evidence,

Deren’s misidentification at trial and other minor inconsistencies in the

evidence do not support a conclusion that the trial court abused its

discretion in denying Appellant a new trial.




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     Since appellant has failed to present any meritorious arguments, we

affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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