J-S56022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM SANCHEZ,                         :
                                          :
                    Appellant.            :   No. 1880 MDA 2017


          Appeal from the Judgment of Sentence, October 6, 2017,
             in the Court of Common Pleas of Dauphin County,
           Criminal Division at No(s): CP-22-CR-0005344-2015.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED DECEMBER 18, 2018

      William Sanchez appeals from the judgment of sentence after a jury

found him guilty of first degree murder of Jorge Toro and resisting arrest.

After careful review, we affirm.

      The trial court provided a detailed account of the facts as follows:

            In August 2015, Sadi Figueroa was romantically involved
      with Jorge Toro, nicknamed “Pikachu.” Toro’s heroin use, which
      frequently caused him to become sick when he needed drugs, was
      a source of arguments between them. Occasionally, Ms. Figueroa
      rode in the car with Toro to Hall Manor where he would meet
      [Sanchez]. Toro often left their apartment for Hall Manor, sick
      from withdrawal, then returned not sick.

            On August 17, 2015, at 6:00 a.m., the phone Ms. Figueroa
      lent to Toro rang repeatedly. Toro was very drug sick that day.
      When Ms. Figueroa spoke to him on the phone that afternoon,
      Toro stated, “I am resolving an issue”. When Toro returned to the
      apartment, he appeared frantic and told her that a person “had
      him here and there.” When Toro received a call late in the day,
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     Ms. Figueroa heard him say something to the effect of, “It’s him.”
     Toro left without saying where he was going.

           Jennifer Jancewicz, was, at the time, an admitted heroin
     addict. Throughout the day, she desperately attempted to reach
     her supplier Jorge Toro. That evening, Ms. Jancewicz became ill
     and anxious, in need of heroin. Toro did not respond to her dozens
     of text messages. Police contacted Jancewicz early on the morning
     of August 18, 2017 having retrieved her number from Toro’s
     phone.

            Emily Osorio lived with her husband Luis Osorio (“Osorio”)
     and their four daughters in an apartment in Hall Manor, near
     [Sanchez’s] residence. Osorio frequently visited [Sanchez] and
     returned with heroin. Osorio became extremely sick if he did not
     have the heroin he needed. Jorge Toro and Osorio frequently
     shared heroin if they did not have enough money to buy drugs
     individually. As of August 2015, Osorio’s addiction had progressed
     significantly. He and Toro were high every time Emily Osorio saw
     them together.

           Early in the morning on August 17, 2015, [Sanchez] called
     Osorio and accused him of breaking into his van, which Osorio
     denied. Emily Osorio saw her husband across the street talking
     to [Sanchez]. [Sanchez] then claimed that Toro broke into the
     van and stole a gun that Toro sold [Sanchez] a few days earlier.

           After taking her children to school, Emily walked up to the
     van and saw that the driver’s side window was broken. At
     approximately noon, Emily saw [Sanchez] and her husband
     speaking to Toro. [Sanchez] and Osorio began driving around. As
     they drove, [Sanchez] placed a semiautomatic gun on his thigh
     and told Osorio he was going to “check Pikachu out.” [Sanchez]
     called Toro, but did not reach him. [Sanchez] made threats about
     Toro. Unable to reach Toro, [Sanchez] returned to Hall Manor.
     [Sanchez] remained angry, believing that Toro broke into the van.

          Erving Marrero-Machado, (“Marrero”) nicknamed “Cholon”
     knew [Sanchez] because their wives were friends. Marrero saw
     [Sanchez] that evening vacuuming broken glass from his car.
     [Sanchez] was angry and mentioned the name Pikachu. Marrero
     drove to Hall Manor in his vehicle where he picked up [Sanchez].
     Marrero tried to calm [Sanchez] by driving around. The two picked
     up Osorio. [Sanchez] sat in the front passenger seat and Osorio

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     in the back seat. Marrero drove to the area of Dean and Rollerston
     Streets, where he parked his car. Toro’s vehicle was parked
     nearby. [Sanchez], Osorio and Morrero exited the vehicle.

           [Sanchez] began to argue with Toro about the van.
     [Sanchez] pulled out a gun. Osorio heard some “pops” and a
     scream. Marrero and Osorio ran away. Osorio ran back toward his
     house via the route Morrero had driven in the car. Morrero ran to
     a nearby grocery store before returning to the alleyway to retrieve
     his car. When Morrero spoke to [Sanchez], [Sanchez] said “he
     got what he was looking for.”

            [Sanchez] and Morrero found Osorio behind a nearby
     school. [Sanchez] stated, “I caught him in the stomach, he
     screamed like a bitch” then “came over and put two in his head.”
     [Sanchez] gave the gun to Morrero and told him to “get rid of
     this.”

           At 9:50 p.m., Emily received a text from Osorio which told
     her to turn on the news. Within minutes, Osorio banged on their
     front door. Osorio appeared panicked. He ran to the sink, began
     washing his face, arms and upper body and said, “He shot him.”
     When Emily Osorio asked who, Osorio responded “Will.” Osorio
     stated, “He killed him. He shot him here, in the stomach.” Osorio
     gestured to the groin area. He told Emily that after [Sanchez]
     shot Toro in the groin, Toro fell and asked, “What’s going on? You
     know. Let’s talk about it. Let’s talk it out.” Osorio stated that
     [Sanchez] said to Toro in Spanish, “Fuck you,” and shot him in the
     head. Frightened, Emily told Osorio to leave the house.

           That night, Rose Caraballo Santana drove through an
     alleyway near Rollerston and Dean Streets in Harrisburg toward
     her mother’s house. At first, Ms. Santana thought the person she
     saw lying in the alleyway was intoxicated. Frightened when she
     observed blood, Ms. Santana called police. Police interviewed Ms.
     Santana’s stepfather, Samuel Ramos, who lived near the
     alleyway. Mr. Ramos told police he had heard five to six gunshots
     approximately half an hour before police arrived.

           Harrisburg Police Corporal Brian Henry and another officer
     arrived to the area of Dean Street behind the 1300 Block of
     Rollerston Street at approximately 9:55 p.m. Emergency
     personnel were on the scene when he arrived. Corporal Henry
     observed that the victim was obviously deceased, with a gunshot

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     wound to the back of the head and blood on his pelvic area and
     buttocks.

           Police located five shell casings near the body. On the
     victim's body, police found syringes, empty baggies and a little
     over nine dollars in cash. The baggies were torn open and
     appeared to have contained residue of heroin. Police located Jorge
     Toro’s vehicle nearby.

           At around 11:00 p.m., Sadi Figueroa called Toro’s phone to
     find out where he was. Harrisburg Police Captain Gabriel Olivero,
     who had responded to the scene, answered the ringing phone.
     Captain Oliverio asked Ms. Figueroa identifying information about
     Toro’s clothing and vehicle. Police informed Ms. Figueroa that Toro
     was deceased.

           Over the ensuing days, Emily Osorio became increasingly
     anxious. She decided to contact a Swatara Township police officer
     with whom Osorio had previous contact related to a theft charge.
     Emily identified [Sanchez] in a photo array as the person who
     Osorio identified as the shooter. A few days after Emily spoke to
     police, someone spray-painted the words “Two rats live here” on
     the front and back of their apartment.

             In late August 2015, Police contacted Luis Osorio. Osorio
     first denied knowledge of the shooting. In a second statement,
     Osorio claimed that he remained in the car as [Sanchez] shot
     Toro. In a September 1, 2015, statement, Osorio admitted being
     in the alleyway when [Sanchez] shot Toro. Osorio testified that
     initially he gave incorrect statements out of fear of being known
     as a snitch, because his wife and children lived across the street
     from [Sanchez].

          After speaking with Osorio and Marrero, police took
     [Sanchez] into custody on September 1, 2015.

           In September 2015, while awaiting sentencing on federal
     drug charges, Nelson Martinez shared a cell with [Sanchez] at the
     Dauphin County Prison. Martinez heard [Sanchez] cry during the
     night. [Sanchez] and Martinez conversed in Spanish. [Sanchez]
     told Martinez that he killed Pikachu because Pikachu sold him a
     gun then stole it from him. [Sanchez] told Martinez that he knew
     that Toro needed drugs early in the day, but did not meet with
     Toro until night time. [Sanchez] told Martinez that Toro arrived at

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     the location, hurriedly asked for the drugs and paid [Sanchez].
     [Sanchez] told Martinez that he acted as if he were reaching for
     the drugs, but pulled out a gun. [Sanchez] related that he
     confronted Toro about stealing the gun and asked, “Why did you
     do that to me?” [Sanchez] told Martinez that after Toro laughed
     at him, he shot him once in the stomach and twice in the head.
     [Sanchez] told Martinez that the two people with him hid in the
     bushes during the shooting, then fled. [Sanchez] stated that when
     he got home, he washed his arms with tomato sauce which he
     believed would eliminate evidence of gun powder.

           Trooper Todd Neumeyer, a firearms and tool mark examiner
     with the Pennsylvania State Police, opined that the five shell
     casings retrieved from the scene were all fired from the same gun.

           Forensic pathologist, Wayne Ross, M.D., testified that Jorge
     Toro died of multiple gunshot wounds: one behind his right ear,
     to the left cheek, to his right arm and to the lower right quadrant
     of the abdomen. All shots were fired from a distance of 3-4 feet
     or greater. Dr. Ross testified that the gunshot to the abdomen,
     which entered from front to back, would have caused Toro to drop.
     The gunshot wound to the left cheek exhibited a projectile path of
     45 to 60 degrees downward, consistent with a person standing
     over the victim while shooting. Dr. Ross testified that the gunshot
     to the left cheek entered the airways in the neck and caused
     substantial bleeding into the lungs, which would have killed Jorge
     Toro. The gunshot wound to the brain exhibited the path of a large
     caliber missile which also entered from front to back. The autopsy
     also revealed track marks in the inside crease of the elbow
     evidenced Jorge Toro’s drug abuse.

Trial Court Opinion, issued 4/15/18, 2-7.

     A jury trial was held on October 3-6, 2017.      Prior to trial, Sanchez

interposed an oral motion in limine to exclude prior bad acts evidence under

Pennsylvania Rule of Evidence 404(b). The trial court denied the motion. The

jury convicted Sanchez of the above charges. The court sentenced Sanchez

to life without parole. Sanchez filed a post-sentence motion, which the trial




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court denied on November 16, 2017.           This timely appeal followed.    Both

Sanchez and the trial court have complied with Pa.R.A.P. 1925.

      Sanchez raises two issues on appeal:

         1. Did not the lower court err in denying [Sanchez]’s motion
            in limine to bar the introduction of prior-bad-act evidence
            detailing [Sanchez’s] activity as a drug dealer in general
            and more particularly as the principal seller of heroin to
            the decedent?

         2. Did not the lower court abuse its discretion by failing to
            grant [Sanchez] a new trial on the basis that the guilty
            verdict was against the weight of the evidence when the
            totality of the evidence was unreliable, contradictory, and
            incredible?

Sanchez’s Brief at 6.

      Sanchez first argues that “the evidence of [him] selling heroin to the

decedent and others was irrelevant and inadmissible as ‘bad act’ evidence

under Pa.R.E. 404(b),” and that, “any minimal relevance of such evidence was

outweighed by the undue prejudice occasioned by its admission.” Id. at 26.

      Our standard of review of the denial or grant of a motion in limine is

well settled:

         When ruling on a trial court's decision to grant or deny a
         motion in limine, we apply an evidentiary abuse of discretion
         standard of review. The admission of evidence is committed
         to the sound discretion of the trial court, and a trial court's
         ruling regarding the admission of evidence will not be
         disturbed on appeal unless that ruling reflects manifest
         unreasonableness, or partiality, prejudice, bias, or ill-will, or
         such lack of support to be clearly erroneous.




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Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa. Super. 2016) (citation

omitted). “Evidence is admissible if it is relevant – that is, if it makes a fact

at issue more or less probable, or supports a reasonable inference supporting

a material fact.” Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa. Super.

2004).

      The Pennsylvania Rules of Evidence generally prohibit evidence of bad

acts “to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Pa.R.E.

404(b)(1). This rule against the admission of bad acts is subject to numerous

exceptions. The Rules themselves provide that a defendant’s prior bad acts

may be introduced to demonstrate motive, opportunity, intent, preparation,

plan, knowledge, identity, an absence of mistake or accident.            Pa.R.E.

404(b)(2). As we previously held, this list is non-exclusive. Commonwealth

v. Reese, 31 A.3d 708, 723 (Pa. Super. 2011) (en banc).           Our Supreme

Court “has demonstrated it will recognize additional exceptions to the general

rule where the probative value of the evidence outweighs the tendency to

prejudice the jury.” Id.

      For example, “our Supreme Court has consistently recognized that

admission of distinct crimes may be proper where it is part of the history or

natural development of the case.” Commonwealth v. Brown, 52 A.3d 320,

326 (Pa. Super. 2012) (citations omitted).      This common-law “res gestae”

exception, as our Supreme Court described, “ is also known as the “complete

story” rationale, i.e., evidence of other criminal acts is admissible to complete

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the story of the crime on trial by proving its immediate context of happenings

in time and place.” Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988).

      Here, the trial court allowed the admission of Sanchez’s drug dealing

under the res gestae, or “part of the story,” exception. Where the res gestae

exception applies, the trial court must balance the probative value of evidence

against its prejudicial impact. Commonwealth v. Sherwood, 982 A.2d 483,

497 (Pa. 2009).

      As Sanchez notes, the Commonwealth claimed at trial “that it was

necessary to introduce evidence of [Sanchez’s] drug dealing to explain (1)

how [Sanchez and Toro] knew each other; and (2) why [Toro] would have

agreed to meet [Sanchez] in an alleyway after dark on August 17, 2015.

Sanchez’s Brief at 34.

      In this appeal, Sanchez challenges this reasoning. He argues that the

drug dealing evidence was not relevant. Id. at 34-36. He claims the existence

of the ongoing relationship between him and Toro could have been established

without mentioning any drug dealing or drug use. Id.

      In allowing this testimony, the trial court reasoned:

              Here, Jancewicz’ testimony of her heroin addiction and
         desperate attempts to contact her supplier, Jorge Toro,
         constituted a relevant part of the complete story as to why
         Toro met with [Sanchez], also a heroin supplier, on the night
         of the shooting. The probative value of such evidence
         outweighed its potential for prejudice. Even if potentially
         prejudicial, no harm occurred by introduction of Jancewicz’
         testimony in that the record was replete with other evidence
         of the drug culture out of which the killing arose.

Trial Court Opinion, 4/5/18, at 9.

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      We agree with the Commonwealth and the trial court that the evidence

of Sanchez's prior drug transactions established part of the “history of the

case” and formed part of the natural development of facts. The trial court did

not admit such evidence for the purpose of demonstrating Sanchez had a

propensity to distribute heroin. The trial court admitted the evidence so the

Commonwealth could show a sequence of events, which explained how the

two men were connected and why Sanchez and Toro met in the alleyway on

the night in question.     The context of the relationship between the Sanchez

and the decedent was important for the jury to understand the whole story in

terms of time and place, and on balance was more probative than prejudicial.

Accordingly, we discern no error or abuse of discretion by the trial court in

admitting this evidence.

      Sanchez next challenges the weight of the evidence supporting his jury

verdict of first degree murder. Appellate review of a weight of the evidence

claim involves “examining the trial court’s exercise of discretion in its review

of the fact-finder’s determinations.” Commonwealth v. Ross, 856 A.2d 93,

99 (Pa. Super. 2004). As this Court has summarized:

              The determination of the weight of the evidence
         exclusively is within the province of the fact-finder, who may
         believe all, part, or none of the evidence. A new trial should
         be awarded when the jury’s verdict is so contrary to the
         evidence as to shock one’s sense of justice and the award
         of a new trial is imperative so that right may be given
         another opportunity to prevail. In this regard, the evidence
         must be so tenuous, vague and uncertain that the verdict
         shocks the conscience of the court.

Id. (citations omitted).

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      The trial court found no merit to Sanchez’s weight claim and reasoned:

         . . . we correctly concluded that the weight of the evidence
         supports the jury’s finding that [Sanchez] killed Jorge Toro.
         The jury was free to reconcile, as it deemed appropriate,
         discrepancies in the testimony of Osorio and Marrero, or, in
         the alternative, fully accept the testimony of Nelson
         Martinez, to whom [Sanchez] gave a detailed confession.

         We also properly rejected [Sanchez’s] claim that a lack of
         physical evidence linking [Sanchez] to the scene
         undermines the weight of the evidence. Circumstantial
         evidence may prove guilt beyond a reasonable doubt.

Trial Court Opinion, 4/5/18, at 10. We agree.

      In reaching their verdict, the jury clearly believed the evidence that the

Commonwealth offered to establish Sanchez’s guilt. Because the evidence

presented was not “tenuous, vague and uncertain,” the trial court did not

abuse its discretion in denying Sanchez’s post-sentence motion for a new trial.

See Ross, 856 A.2d at 99. Thus, Sanchez’s weight claim is without merit.

      In sum, the trial court properly admitted evidence of Sanchez’s prior

heroin dealing, and this evidence, along with the testimony presented by the

Commonwealth, demonstrates that Sanchez’s conviction was supported by

the weight of the evidence.     We therefore affirm Sanchez’s judgment of

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2018




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