Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

LUIS M. SOTO

Appellant No. 61 EDA 2016 Appeal from the Judgment of Sentence December 4, 2015

In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007170-2013 CP-51-CR-0007171-2013 CP-51-CR-0007172-2013 CP-51-CR-0007173-2013 BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.* Filed August 1, 2017

MEMORANDUM BY MOULTON, J.: Luis M. Soto appeals from the December 4, 2015 judgment of sentence entered Philadelphia County Court of Common Pleas following convictions for third-degree murder, carrying firearm without license, carrying firearm streets of Philadelphia, possessing an instrument crime ("PIC"), three counts of aggravated assault causing serious bodily injury.' Soto's appellate filed brief pursuant California, U.S. 738 (1967), petition

[*] Former Justice specially assigned the Superior Court. 18 Pa.C.S. §§ 2502(c), 6106(a)(1), 907(a), 2702(a)(1),

respectively. withdraw from representation. We affirm and grant counsel's petition to withdraw. We also dismiss Soto's claims for ineffective assistance of counsel without prejudice. court summarized the factual history of this matter as

follows:

On April 2013, in the late afternoon hours, a large crowd of people gathered at Water and Somerset Streets in Philadelphia. A fight subsequently broke out between three several female members of this crowd, when unknown women attacked Ashley Soberal. Amanda Martinez, the decedent, was amongst the crowd, watching fight. After the fight, [Soto] and an unnamed friend had conversation in a nearby lot Somerset Street with Madeline Soberal, the mother of the girl who had been attacked.2 There was large crowd of people in the lot at this time. While [Soto], his friend and Madeline Soberal were talking, [Soto] had his hands in area of his waist, as if he possession of firearm. Madeline Soberal believed [Soto] and his friend were responsible three women attacking her daughter. After she asked [Soto]'s friend multiple times whether he got the three women "jump" Madeline Soberal's daughter, [Soto]'s friend admitted he did so. Right after that admission, someone from the crowd came from behind her punched [Soto]'s friend face. After friend was punched, [Soto] drew a firearm began shooting multiple times at the crowd. As [Soto] fired, crowd began to flee area. Madeline Soberal took cover behind Buick where she encountered Amanda Martinez, who been struck bullet who asked Soberal stay with her. Soberal told Martinez she would stay with her until an ambulance arrived. As [Soto] left area, still possession of the firearm. [Soto] was also identified "Bebe."

Police responded approximately 5:50 p.m. Upon arriving at scene, police encountered chaotic crowd over 100 people attempted locate any victims, finding Martinez laying a pool of blood. Martinez was placed into a private vehicle and rushed to Episcopal Hospital. Martinez later pronounced dead at the hospital, having suffered a gunshot wound which penetrated her chest, heart, lungs. Police also identified Jose Torres, Carl Walden and Larry Robinson as shooting victims. Torres had been shot twice the groin area. Walden been shot his right leg.3 Both Torres and Walden were transported to Temple University Hospital for medical care. Robinson was transported Episcopal Hospital private vehicle, where treated a gunshot wound stomach.

[3] Walden was also identified as "Panama." Seven .40 caliber Smith & Wesson fired cartridge casings were recovered at the scene. Police also recovered two bullet specimens, bullet jacket, bullet core. Subsequent analysis showed the bullets bullet jacket were all fired from same firearm. All seven cartridge casings were also fired from the same weapon.

Opinion, 2/24/16, at 2-4 ("1925(a) Op.") (internal citations omitted).

On August 31, 2015, jury convicted Soto of the aforementioned charges. On December 4, 2015, the trial court sentenced Soto to an aggregate term of 100 years' incarceration. On December 9, 2015, Soto filed timely notice of appeal.2 On December 18, 2015, filed statement matters

complained of appeal pursuant Pennsylvania Rule of Appellate Procedure 1925(b). On May 13, 2016, Soto's counsel, who also represented him trial, filed motion withdraw. On June 6, 2016, this Court granted the motion, directed the trial court determine Soto's eligibility for court -appointed within 60 days. On July 2016, the trial court appointed Gary S. Server, Esquire, Soto's appellate counsel.

-3 Because counsel has filed a petition to withdraw pursuant to Anders and its Pennsylvania counterpart, Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), we must address counsel's petition before reviewing the merits of Soto's underlying claims. v. Goodwin, 928 A.2d (Pa.Super. 2007). We first address whether counsel's petition to withdraw satisfies the procedural requirements of Anders. To be permitted to withdraw, counsel must:

1) petition the court leave to withdraw stating that, after making conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish copy of the brief to the defendant; and 3) advise defendant that he or she has right to retain private counsel or raise additional arguments that defendant deems worthy of the court's attention. Cartrette, A.3d 1030, 1032 (Pa.Super. 2013) (en

banc).

Here, appellate counsel has stated after "thorough conscientious examination of record," believes "that this appeal its present procedural posture wholly frivolous without support law facts." Mot. Withdraw, 11/3/16, Appellate furnished copy of the brief to Soto, well as letter advising him he "the right personally participate appeal file writing of your own with the Superior Court of Pennsylvania. You may also hire counsel to represent you file whatever deemed appropriate protect your interests." Ltr. to Soto, 10/31/16. We conclude counsel's petition withdraw complied with the procedural dictates of Anders.

-4 We next address whether counsel's Anders brief meets the requirements established the Pennsylvania Supreme Court Santiago. brief must:

(1) provide summary of the procedural history and facts, with citations the record; (2) refer anything the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that appeal is frivolous; and (4) state counsel's reasons for concluding that appeal frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes point that have led the conclusion that the appeal frivolous.

Santiago, 978 A.2d at 361.

Here, appellate counsel has provided summary of the procedural history and the facts with appropriate citations record. Anders Br. at 8-19. Counsel's brief states conducted thorough and objective review of the record concluded record does support appeal appeal frivolous, while setting forth reasons his conclusion. Anders Br. Accordingly, appellate has substantially complied with requirements of Anders Santiago. not filed pro se brief counseled brief with new, privately -retained counsel. We, therefore, review the issues raised brief.

-5 following issues3 were raised the Anders brief: Specific issues raised by [Soto] on direct appeal [1.] Whether court erred not granting a mistrial when the Commonwealth's witness referenced the criminal history dangerousness of [Soto].

[2.] Whether the Commonwealth's evidence and argument about fear danger was inappropriate prejudicial since there was absolutely no evidence that [Soto] anyone associated to him any contact with any witness or engaged any intimidation.

[3.] Whether the admission of text witnesses] daughter was error because it was not related to [Soto] or anyone associated with [Soto]. [4.] Whether Detective [David] Schmidt's testimony regarding recording that said the "man responsible the shooting owned vehicle" where the vehicle in question [Soto]'s vehicle should have been excluded as inadmissible hearsay.

Issues that could have been raised by [Soto] direct appeal but were not

[5.] Whether ineffective [Soto] provided with assistance of counsel where counsel: file post sentence motions

1. Failed challenging the weight of the evidence or the discretionary aspects of sentencing; cross-examinations Conducted of 2. Commonwealth witnesses had them also raises "global question" reads as follows: "Whether there anything record might arguably support appeal that obviates conclusion that appeal frivolous." Br. We will not address Soto's "global question" it does raise specific issue for our review.

-6 repeat damaging inculpatory evidence over and over again;

3. Engaged conduct that disrespectful and disobedient court before the jury; loud, arrogant, angry Engaged in badgering examinations of witnesses.

[6.] Whether [Soto]'s convictions for third degree murder and aggravated assault -causing serious bodily injury were against the weight and credibility of the evidence.

[7.] Whether [Soto]'s convictions for third degree murder and aggravated assault -causing serious bodily injury were based upon insufficient evidence. Br. at 6-7 (full capitalization answers below omitted).

First, Soto contends the trial court erred denying request for a mistrial after one of the Commonwealth's witnesses referenced Soto's criminal history "dangerousness."

Our standard of review of trial court's refusal grant motion a mistral is whether trial court abused its discretion. Commonwealth v. Savage, A.2d 309, 312 (Pa. 1992). Supreme Court stated: . It is

[T]he remedy of mistrial is an extreme one. . . primarily within court's discretion determine whether Appellant prejudiced the event forms substance of it must be the motion. Finally, remembered mistrial required only when an incident such nature its unavoidable effect deprive appellant of fair impartial trial. v. Lease, 703 A.2d (Pa.Super. 1997) (quoting Montgomery, 626 A.2d 109, 112-13 (Pa. 1993)).

Furthermore,

-7 [a] trial court may remove taint caused by improper testimony through curative instructions. Courts must consider all surrounding circumstances before finding that curative instructions were insufficient extreme remedy of mistrial required. The circumstances which court must consider include whether improper remark was intentionally elicited by the Commonwealth, whether the answer was responsive the question posed, whether the Commonwealth exploited the reference, and whether curative instruction was appropriate. Manley, 985 A.2d 256, 266-67 (Pa.Super. 2009)

(quotation internal citations omitted).

Here, while cross-examination, Commonwealth witness Madeline Soberal asked Soto's whether he had checked Soto's background. 1925(a) Op. at 5. She then stated that she feared her family children. Id. Soto's counsel requested mistrial at the next break, claiming Soberal effectively revealed Soto's criminal background with her statements. Id. at trial court found:

The record establishes mistrial not required. Soberal's question about [Soto]'s background not elicited the Commonwealth, but by [Soto]'s attorney during heated cross-examination. Additionally, did not exploit the challenged testimony in any manner. Finally, the Court immediately gave a curative instruction the jury, directing them disregard statement. Under these circumstances, it clear that Soberal's brief reference [Soto]'s "background" did not have the unavoidable effect of denying [Soto] fair trial. Accordingly, the Court correctly denied [Soto]'s motion for mistrial.

Id. (internal citations omitted). We agree. Accordingly, we conclude court did abuse its discretion denying Soto's request for mistrial.

-8 Next, contends that "the Commonwealth's evidence about fear danger inappropriate prejudicial since there was absolutely no evidence [Soto] anyone associated to him" contacted or intimidated witnesses. Br. at Specifically, this claim refers to evidence regarding post to social media website Instagram. trial court described post follows:

During first day of testimony, the Commonwealth informed the Court its witness Madeline Soberal had seen copy of an online posting, which she believed to be nature. N.T. 8/26/15 193-194. threatening In particular, Soberal's daughter forwarded to Soberal a posting Instagram [Soto]'s brother-in-law stating the following:

On my way support my boy, bebesky [[Soto]'s nickname]!!! Its crazy how they charging my boy 4suming [sic] aint even do, its cool doe [sic] cuz we about rumble n god [sic] BACK...

N.T. 8/26/15 at 223, Commonwealth Exhibit C-87.

Because of the alleged threat, the Commonwealth requested the Court exclude all spectators from the courtroom duration of Soberal's testimony. The defendant objected any members of the public being excluded. Therefore, the Court held an camera hearing determine if closure of the courtroom during Soberal's testimony permissible. Following the hearing, the Court denied the Commonwealth's request to close courtroom.

1925(a) Op. at 7-8 (internal citations omitted) (some alterations original). Soberal then testified, during which the Commonwealth inquired about the post. After some discussion between counsel court, the court allowed the assistant district attorney ("ADA") trying case read Instagram post into the record. N.T., 8/26/15, at 300-04. Defense counsel requested that the entirety of the post be read aloud. Id. at 302. After ADA began to read, defense counsel objected to "mannerisms" and requested that another party read the post; however, defense counsel made clear he not objecting to the contents of the post being read. Id. at 304. Thereafter, the court allowed the ADA read the remainder of post.

Because defense counsel did not make contemporaneous objection the admission of the Instagram post into evidence, this issue waived. See Pa.R.A.P. 302(a) ("Issues raised in lower court are waived cannot be raised first time appeal."). Soto's similar claim regarding the Commonwealth's closing argument, in which "the prosecutor referred Instagram posting Soberal's fearful reaction it[,]" 1925(a) Op. at also waived, because defense counsel did not make a contemporaneous objection. Powell, 956 A.2d 406, (Pa. 2008) ("The absence of contemporaneous objection below constitutes waiver appellant's current claim respecting the prosecutor's closing argument."). next contends trial court erred admitting text

message sent Soberal's daughters. Appellate counsel concedes his Anders brief "has absolutely no idea what [Soto] raising here." Br. It appears "text" question may be same thing as the Instagram post. In any event, because Soto did not object to the admission of any text messages at trial, waived this claim. See Pa.R.A.P. 302(a). next claims that the police detective's testimony regarding a 911

call, which identified the shooter the owner of a vehicle found at the scene, should have been excluded. The court stated:

To the extent that [Soto] is claiming that the admission of the testimony regarding the 9-1-1 caller was error, his claim is frivolous. [Soto] objected to this testimony the Court immediately sustained the objection, struck the evidence, directed the jury disregard it. N.T. 8/27/15 at 161-162. Accordingly, the challenged evidence was never admitted by the Court.

Later trial, [Soto] moved for a mistrial based on the Detective's testimony regarding the 9-1-1 statement. N.T. 8/27/15 217-218. To extent that [Soto] is attempting (without saying so) to challenge the Court's decision denying his motion for a mistrial, his claim is without merit. As stated above, mistrial is only required "when an incident of such nature that its unavoidable effect deprive defendant fair trial." Here, the Detective made momentary reference an out -of -court statement 9-1-1 tape to explain course of conduct, that is, why police searched the vehicle at the scene of the shooting which evidence recovered that tended to prove that [Soto] area at the time of the shooting. An out -of -court statement offered not for its truth, but rather explain the course -of conduct of police, admissible, particularly where, as here, defense attacked the adequacy of the police investigation. See Chmiel, 889 A.2d 532-534 (Pa. 2005). However, under circumstances presented, the Court deemed the potential jury consider the statement for an improper purpose, is, as proof the shooter was seen driving Buick, to outweigh its non -hearsay probative value. For reason, the Court immediately only struck evidence, but explicitly admonished jury disregard it. Under these circumstances, the jury's brief exposure arguably admissible evidence could not have deprived defendant of a fair trial. No relief due. See [Commonwealth v. Manley, 985 A.2d 256 266-67 (Pa.Super. 2009)]; [Commonwealth v. Freeman], 827 A.2d 385, 409 (Pa. 2003).

1925(a). Op. 9-10 (emphasis added). Because trial court, fact, excluded detective's testimony, we conclude Soto's claim lacks merit.

Next, claims trial counsel was ineffective on four separate bases. However, it well -settled that "absent certain circumstances, 'claims ineffective assistance of counsel are to be deferred [Post Conviction Relief Act] review; trial courts should not entertain claims of ineffectiveness upon post -verdict motions; and such claims should be reviewed upon direct appeal.' Commonwealth v. Harris, 114 A.3d ^[5] (Pa.Super. 2015) (quoting v. Holmes, A.3d 562, 576 (Pa. 2013)); see also Grant, 813 A.2d 726, 738 (Pa. 2002) ("[A]s a general rule, petitioner should wait to raise claims of ineffective assistance of counsel until collateral review."). Accordingly, because circumstances warranting review of Soto's ineffectiveness claims direct appeal do not exist, we dismiss Soto's ineffectiveness claims without prejudice. See Grant, 813 A.2d at 739 (dismissing appellant's claims of ineffectiveness of without prejudice).

Finally, we conclude Soto waived his weight of the evidence sufficiency of the evidence claims because did not raise them in his Rule 1925(b) statement. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) ("Any issues not raised 1925(b) statement will be deemed waived."). In addition, did not raise his challenge the weight of the evidence with the trial judge. Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004) ("As noted comment [Pennsylvania Rule of Criminal Procedure] 607 [regarding challenges the weight of the evidence], '[t]he purpose of this rule make it clear challenge to weight of the evidence must be raised with trial judge or it will be waived.") (some alterations original)..

Even if Soto not waived his challenge weight of the evidence supporting convictions for third-degree murder aggravated assault, this challenge meritless. This Court reviews weight of the evidence claim an abuse of discretion. v. Clay, 64 A.3d (Pa. 2013). "One of the least assailable reasons for granting or denying new the lower court's conviction Id. verdict against the weight of the evidence . . ." . (quoting Widmer, 744 A.2d 745, 753 (Pa. 2000)). "Because the trial judge has had opportunity to hear and see evidence presented, an appellate court will give the gravest consideration the findings reasons advanced trial judge when reviewing trial court's determination the verdict against the weight of the evidence." Id. (quoting Widmer, 744 A.2d at 753).

In the Anders brief, offers two bases for challenging the weight of the evidence: 1) the "eyewitnesses were not good position to make an identification" "were so overcome with fear as to be incapable of making an accurate identification"; and 2) the witnesses who identified Soto made an excessive amount of inconsistent statements. Br. at However, as fact -finder, jury free credit the witnesses' testimony they saw fit. See Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (quoting v. Price, 616 A.2d 685 (Pa.Super. 1992)) ("A determination credibility lies solely within the province of the factfinder."); DeJesus, 860 A.2d 102, (Pa.Super. 2004) ("The weight of the evidence exclusively finder of fact, which free believe all, part, or none of the evidence, assess credibility of the witnesses.").

Further, even if not waived his challenge the sufficiency of the evidence supporting convictions for third-degree murder aggravated assault, we would find it meritless. We apply the following standard when reviewing sufficiency of the evidence claim:

[W]hether viewing all the evidence admitted light most favorable verdict winner, there is sufficient evidence to enable fact -finder to find every element of the crime beyond reasonable doubt. In applying the above test, we may not weigh the evidence substitute our judgment for fact -finder. In addition, we note facts and circumstances established by the Commonwealth need not preclude every possibility of regarding innocence. Any doubts a defendant's guilt may be resolved by the fact -finder unless the evidence is so weak and inconclusive as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof or proving every element of the crime reasonable doubt means of wholly beyond a circumstantial evidence. Moreover, in applying the above test, entire record must be evaluated all evidence actually received must be considered. Finally, the trier of fact while passing upon credibility of witnesses weight of the evidence produced, is free to believe all, part or none of evidence. v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003) (quoting DiStefano, 782 A.2d 574, (Pa.Super. 2001)).

This Court previously discussed the elements of third-degree murder:

The elements of third-degree murder, developed by case law, are killing done with legal malice but without the specific intent to kill required first -degree murder. Malice is the essential element of third degree murder and distinguishing factor between murder is manslaughter. Pennsylvania Supreme Court has defined malice the following terms:

"The distinguishing criterion of murder is malice aforethought. But it not malice its ordinary understanding alone, particular ill - will, spite or grudge. Malice legal term, implying much more. It comprehends only particular ill -will, but every case where there wickedness of disposition, hardness of heart, cruelty, recklessness consequences, a mind regardless of social duty, although a particular person may not be intended be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, its legal sense, prevailed." Commonwealth v. Thomas, 527 Pa. 511, 514, 594 A.2d 300, 301 (1991), quoting v. Drum, 58 Pa. (1868). Accordingly, it has been observed that malice may be found where actor consciously disregard[s] an unjustified and extremely high risk his actions might cause death or serious bodily harm. Malice may be inferred from the attending circumstances of the act resulting the death. Malice properly implied when a deadly weapon directed to a vital part of the [victim's] body. Indeed, the inference from the use deadly weapon upon vital part of the body alone sufficient establish malice. Cruz -Centeno, 668 A.2d 536, 539-40 (Pa.Super.

1995) (some internal quotations omitted) (alterations emphasis in original). evidence shows intentionally drew firearm began

shooting into large crowd of people, killing one person injuring three others. His actions demonstrate disregard for unjustified extremely high risk those actions might cause death or serious bodily harm, thereby satisfying the requirement of malice. Thus, the evidence was sufficient to support his conviction for third-degree murder.

We next turn Soto's challenge the sufficiency of the evidence supporting convictions aggravated assault - causing serious bodily injury. This Court stated:

Under Crimes Code, person may be convicted of if or she "attempts cause aggravated assault, . . . serious bodily injury another, or causes such injury intentionally, knowingly, recklessly under circumstances manifesting extreme indifference the value of human life." 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is further defined Crimes Code "bodily injury which creates substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member organ." 18 Pa.C.S.A. § 2301. Bruce, 916 A.2d (Pa.Super. 2007). Here,

evidence shows shot Jose Torres once in right groin once the left buttocks, Carl Walden once right femur, Larry Robinson once the stomach. Because these are all serious bodily injuries, we conclude the evidence sufficient support Soto's aggravated assault convictions.

Judgment of sentence affirmed. Ineffective assistance of counsel claims dismissed without prejudice. Petition leave to withdraw as granted. Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 8/1/2017