Com. v. Amill-Torres, K.

J-S30015-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KEVIN AMILL-TORRES :

:

Appellant : No. 2253 EDA 2024

Appeal from the Judgment of Sentence Entered April 26, 2024

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0002991-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KEVIN AMILL-TORRES :

:

Appellant : No. 2254 EDA 2024

Appeal from the Judgment of Sentence Entered April 26, 2024

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0002992-2020

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY OLSON, J.: FILED DECEMBER 2, 2025

In this consolidated appeal,1 Appellant, Kevin Amill-Torres, appeals from

the April 26, 2024 judgments of sentence imposed by the Court of Common

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* Retired Senior Judge assigned to the Superior Court.

1 In a March 11, 2025 per curiam order, this Court granted Appellant’s

application to consolidate the appeals filed with this Court at docket numbers

2253 EDA 2024 and 2254 EDA 2024. Per Curiam Order, 3/11/25.

J-S30015-25

Pleas of Philadelphia County after a jury convicted Appellant of murder of the

first degree at trial court docket CP-51-CR-0002992-2020 (“Case CR-2992”),

as well as voluntary manslaughter – individual killed, carrying firearms on

public streets or public property in Philadelphia (“VUFA”), and possessing

instruments of crime (“PIC”) at trial court docket CP-51-CR-0002991-2020

(“Case CR-2991”).2 The trial court sentenced Appellant to an aggregate term

of life imprisonment without the possibility of parole to be followed by 5 to 10

years’ incarceration.3 On August 22, 2025, counsel for Appellant, Daniel A.

Alvarez, Esquire (“Attorney Alvarez”) filed a petition with this Court seeking

to withdraw as counsel for Appellant. We affirm Appellant’s judgment of

sentence and grant Attorney Alvarez’s request to withdraw as counsel.

The trial court summarized the factual and procedural history as follows:

On August 31, 2019, around 6:50 a.m., Appellant shot and killed

Felix Mota-Montilla [(“Mr. Mota-Montilla”)] and Jeffery Otero

[(“Mr. Otero”)] after engaging in a brawl outside of an after-hours

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2 18 Pa.C.S.A. §§ 2502(a), 2503(a)(1), 6108, and 907(a) respectively.

Appellant’s judgments of sentence were made final by the denial of his

post-sentence motion on July 23, 2024.

3 In Case CR-2992, the trial court sentenced Appellant to life imprisonment

without parole for his first-degree murder conviction. Order of Sentence

(Case CR-2992), 4/26/24. In Case CR-2991, the trial court sentenced

Appellant to 5 to 10 years’ incarceration for his voluntary manslaughter

conviction and a concurrent sentence of 1 to 2 years’ incarceration for his

VUFA conviction. Order of Sentence (Case CR-2991), 4/26/24. No further

penalty was imposed for his PIC conviction. The aggregate sentence of 5 to

10 years’ incarceration imposed in Case CR-2991 was set to run consecutively

to the sentence of life imprisonment imposed in Case CR-2992.

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club on North 4th Street in Philadelphia[, Pennsylvania]. At

approximately 6:47 a.m., Appellant and a group of his friends,

which included Jeffery Tabarez [(“Mr. Tabarez”)], were leaving the

club when they discovered Mr. Mota-Montilla and Mr. Otero

harassing their inebriated friend “Mike” who was unconscious on

the curb. An argument between the two groups commenced,

which quickly escalated when Mr. Otero, using a .40 caliber

handgun, fired shots at Appellant’s group, ultimately striking

Appellant’s friend Shawn Harrison. In response, Appellant took

possession of Mr. Tabarez’s .9mm handgun and promptly

delivered a non-fatal gunshot wound to Mr. Mota-Montilla’s jaw,

incapacitating him.

Simultaneously, a physical altercation between Mr. Tabarez and

Mr. Otero ensued until Mr. Tabarez knocked Mr. Otero out,

rendering him unconscious on the ground. While Mr. Otero was

unconscious, Appellant put the barrel of the 9mm handgun

directly against Mr. Otero’s head and executed him. Appellant

then turned to Mr. Mota-Montilla and fired an additional shot into

his chest while he [lay] incapacitated. Thereafter, Appellant and

Mr. Tabarez fled the scene in the latter’s car and parted ways in

the North Philadelphia area.

While Appellant and Mr. Tabarez fled, Mr. Mota-Montilla and Mr.

Otero were rushed to [the h]ospital, where the [two individuals]

were eventually declared deceased. Police investigators

recovered video footage [that] captured the entirety of the fight

between the two groups[,] which ended with Appellant,

identifiable by his unique red shirt and tattoos, killing both victims.

Police investigators also recovered ten [] .40 caliber [fired

cartridge casings], one [] live .40 caliber round, and four [] .9mm

[fired cartridge casings]. Ballistics testing [confirmed] that the

.9mm [fired cartridge casings] were all fired from the same gun.

Additionally, during the autopsy of Mr. Mota-Montilla, the medical

examiner recovered a bullet from Mr. Mota-Montilla’s chest which

was later identified as a .9mm round.

Later in the afternoon of August 31, 2019, Philadelphia police

arrested Mr. Tabarez and seized his car for further investigation.

Mr. Tabarez ultimately cooperated with the police and explained

how the fight broke out and how Appellant took it upon himself to

kill Mr. Mota-Montilla and Mr. Otero even after the fight had ended

in his favor. On September 4, 2019, police executed a search

warrant at Appellant’s home[.] Appellant, however, had already

fled [the Philadelphia area]. On October 8, 2019, a [United

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States] Marshals Task Force specifically assigned with locating

Appellant apprehended Appellant in Ocala, Florida.

After extradition back to Philadelphia, Pennsylvania, Appellant was

subsequently charged with[, inter alia, the aforementioned

criminal offenses] in relation to the deaths of [Mr.] Mota-Montilla

and [Mr.] Otero.

Appellant's jury trial commenced before [the trial] court on

January 29, 2024. On February 1, 2024, after hearing all evidence

and arguments from counsel, [at Case CR-2991,] a jury found

Appellant guilty of voluntary manslaughter, VUFA[, and PIC] in

relation to the death of [Mr.] Mota-Montilla[. At Case CR-2992, a

jury found Appellant] guilty of Murder of the First Degree for the

death of [Mr.] Otero.

[The trial] court subsequently held a sentencing hearing for

Appellant on April 26, 2024. After hearing statements from both

victims’ families and considering Appellant’s mental health

evaluation, [pre-sentence investigation] report, prior record

score, the sentencing guidelines, arguments from counsel, and the

facts and circumstances of this case, [the trial] court [sentenced

Appellant as detailed supra.]

On May 6, 2024, Appellant filed a timely post-sentence motion

raising weight of the evidence claims and requesting a vacation of

his judgment[s] of sentence[,] which [the trial] court denied on

July 23, 2024. On August 21, 2024, Appellant’s counsel filed a

timely notice of appeal from the judgment[s] of sentence imposed

on April 26, 2024. On September 3, 2024, [the trial] court

directed Appellant to file a [Pennsylvania Rule of Appellate

Procedure] 1925(b) statement of errors complained of on appeal.

Trial Court Opinion, 1/16/25, at 1-4 (record citations, extraneous

capitalization, and section headings omitted). Appellant filed his Rule 1925(b)

concise statement on October 16, 2024, and the trial court filed its Rule

1925(a) opinion on January 16, 2025.

Appellant raises the following issues for our review:

[1.] Was the evidence insufficient to sustain the conviction for

[first-degree murder at Case CR-2992], as the

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Commonwealth failed to disprove beyond a reasonable

doubt, [Appellant’s] genuine belief that he was using

justified force and that he could not retreat to complete

safety[?] The evidence was insufficient to prove malice [to

support a conviction of first-degree murder], as [Appellant]

did not kill in a willful, deliberate, and premeditated manner,

but under the genuine belief he acted in justified defense of

himself and others[.]

[2.] Was the evidence insufficient to sustain the conviction for

PIC [at Case CR-2991], as [Appellant] did not possess the

firearm with the specific intent to employ it criminally?

[3.] Was the evidence insufficient to support the [conviction] for

VUFA[ at Case CR-2991,] as there lacked sufficient evidence

proving [Appellant] specifically possessed the firearm for

any unlawful purpose, as it was possessed under

circumstances where he genuinely believed he was using it

for self-defense?

[4.] Did the trial court err in ruling that the Commonwealth could

introduce evidence of [Appellant’s] prior firearm conviction

(a crime of non-violence), in order to rebut the introduction

of [Appellant’s] reputational evidence for non-violence and

peacefulness[?] As a result, [Appellant] did not introduce

character evidence, and had he been able to do so, it would

have refuted the malice element for [first-degree murder][.]

Appellant’s Brief at 8.

The sufficiency challenges that Appellant develops in his first three

issues target the evidence proffered by the Commonwealth to establish the

mens rea. At Case CR-2992, Appellant claims that the evidence did not

overcome his assertion of self-defense and did not support his first-degree

murder conviction because it was insufficient to establish that he acted with

the intent to kill Mr. Otero. At Case CR-2991, Appellant claims that the

evidence did not establish that he intended to employ his firearm criminally or

that he possessed a firearm for an unlawful purpose. As such, Appellant

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claims that the evidence did not support his convictions for VUFA or PIC. We

use the following standard of review when assessing sufficiency challenges

like those advanced by Appellant.

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances established by

the Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may be

resolved by the fact-finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances. The Commonwealth

may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial

evidence. Moreover, in applying the above test, the entire record

must be evaluated[,] and all evidence actually received must be

considered. Finally, the [fact-finder,] while passing upon the

credibility of witnesses and the weight of the evidence produced,

is free to believe all, part[,] or none of the evidence.

Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019).

We begin with the sufficiency challenge Appellant makes in attacking his

conviction at Case CR-2992. Here, Appellant claims that the evidence was

insufficient to overcome a claim of self-defense or prove an intent to kill in the

shooting death of Mr. Otero. As such, Appellant maintains that the evidence

at Case CR-2992 only proves imperfect self-defense, which should, at most,

have resulted in a voluntary manslaughter conviction.

Section 2502(a) of the Crimes Code states that “[a] criminal homicide

constitutes murder of the first degree when it is committed by an intentional

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killing.” 18 Pa.C.S.A. § 2502(a). Thus, to convict a person of first-degree

murder, the Commonwealth must establish beyond a reasonable doubt that

“(1) a human being was unlawfully killed; (2) the defendant is responsible for

the killing; and (3) the defendant acted with malice and the specific intent to

kill.” Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015). Here,

Appellant asserts that the evidence was insufficient to establish that he acted

with “malice and the specific intent to kill.” Appellant’s Brief at 28 (stating,

“[t]he evidence was insufficient to establish [Appellant] committed a

deliberate and intentional killing”).

Section 2502(d) defines “intentional killing” as “[k]illing by means of

poison, or by lying in wait, or by any other kind of willful, deliberate[,] and

premeditated killing.” 18 Pa.C.S.A. § 2502(d); see also Haney, 131 A.3d at

36. “Specific intent to kill can be proven where the defendant knowingly

applies deadly force to the person of another[,]” and the “Commonwealth may

prove specific intent through purely circumstantial evidence.” Haney, 131

A.3d at 36 (citations and original quotation marks omitted). “Specific intent

may be formed in an instant, [] and it can be discerned from the conduct and

attending circumstances that show the perpetrator’s state of mind.”

Commonwealth v. Newton, 318 A.3d 133, 139 (Pa. Super. 2024) (citations

omitted), appeal denied, 333 A.3d 647 (Pa. 2025). A jury “may [infer] the

intent to kill based on the accused’s use of a deadly weapon on a vital part of

the victim’s body [] or in the general area in which vital organs are located.”

Newton, 318 A.3d at 139 (citation and original quotation marks omitted)

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(stating, “[t]he deadly weapon presumption is a presumption of fact founded

on human experience, since one does not normally use a deadly weapon on a

vital part of another’s body unless he [or she] intends to kill” (citation and

original quotation marks omitted)). “Likewise, malice may also be inferred

from the use of a deadly weapon on a vital portion of the victim's body.” 4

Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011), cert. denied, 565

U.S. 889 (2011).

Appellant not only claims that the evidence was insufficient to prove that

he intended to kill Mr. Otero, but he also asserts that it was insufficient to

overcome his assertion of self-defense. In developing this aspect of his

argument, Appellant recounts his violent encounter with the victims and

alludes to his claims of self-defense, concluding that, while the Commonwealth

may have proven that he harbored an unreasonable belief that he needed to

shoot the victims, it failed to disprove that his belief was genuine. 5

The doctrine of self-defense in Pennsylvania posits that: “The use of

force upon or toward another person is justifiable when the actor believes that

such force is immediately necessary for the purpose of protecting himself

against the use of unlawful force by such other person on the present

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4 Malice, to support the prosecution for criminal homicide, has been identified

as “[t]hat wicked and depraved disposition and that recklessness and

disregard of human life[.]” Commonwealth v. Packer, 168 A.3d 161, 169

(Pa. 2017).

5As we explain more fully below, Appellant’s contention here is that the

Commonwealth failed to refute his imperfect self-defense claim.

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occasion.” 18 Pa.C.S.A. § 505(a). “In order for a defendant to successfully

claim self-defense, he or she must meet the following three elements: (1) the

defendant reasonably believed that he [or she] was in imminent danger of

death or serious bodily injury and that the use of deadly force was necessary

to prevent such harm; (2) the defendant did not provoke the incident which

resulted in the victim’s death; and (3) the defendant did not violate any duty

to retreat.” Commonwealth v. Patterson, 180 A.3d 1217, 1231 (Pa. Super.

2018), appeal denied, 229 A.3d 562 (Pa. 2020). When a defendant claims

self-defense, as Appellant did in the case sub judice, “the Commonwealth has

the burden of disproving self-defense beyond a reasonable doubt and may do

so by disproving any one of the three self-defense elements the defendant

must meet.” Patterson, 180 A.3d at 1231.

“The Commonwealth can negate a self-defense claim if it proves the

defendant did not reasonably believe he [or she] was in imminent danger of

death or great bodily injury and it was necessary to use deadly force to save

himself [or herself] from that danger.” Commonwealth v. Smith, 97 A.3d

782, 787 (Pa. Super. 2014), relying on Commonwealth v. Sepulveda, 55

A.3d 1108, 1124 (Pa. 2012). Similarly, “the Commonwealth negate[s] a

self-defense claim by proving [the defendant] used greater force than was

reasonably necessary to protect against death or serious bodily injury.”

Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc),

appeal denied, 57 A.3d 70 (Pa. 2012).

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The requirement of a reasonable belief encompasses two aspects,

one subjective and one objective. First, the defendant must have

acted out of an honest, bona fide belief that he [or she] was in

imminent danger, which involves consideration of the defendant’s

subjective state of mind. Second, the defendant’s belief that he

[or she] needed to defend himself [or herself] with deadly force,

if it existed, must be reasonable in light of the facts as they

appeared to the defendant, a consideration that involves an

objective analysis.

Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012) (citation and

quotation marks omitted). “A number of factors, including whether

complainant was armed, any actual physical contact, size and strength

disparities between the parties, prior dealings between the parties,

threatening or menacing actions on the part of complainant, and general

circumstances surrounding the incident, are all relevant when determining the

reasonableness of a defendant’s belief that the use of deadly force was

necessary to protect against death or serious bodily injuries.” Smith, 97 A.3d

at 788.

“A defense of ‘imperfect self-defense’ exists where the defendant

actually, but unreasonably, believed that deadly force was necessary.

However, all other principles of self-defense must still be met in order to

establish this defense.” Truong, 36 A.3d at 599 (citations omitted); see also

18 Pa.C.S.A. § 2503(b). “A successful claim of imperfect self-defense reduces

murder to voluntary manslaughter.” Truong, 36 A.3d at 599.

Appellant asserts that “the Commonwealth did not disprove imperfect

self-defense and the evidence was insufficient to prove [Appellant] killed [Mr.]

Otero willfully and deliberately.” Appellant’s Brief at 25. Appellant asserts

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that his actions, at most, constituted voluntary manslaughter, because he

harbored a “genuine but mistaken belief that deadly force was justified.” Id.

Appellant contends that “[a]lthough the Commonwealth may have established

that [Appellant’s] belief that deadly force was necessary was unreasonable[,

the Commonwealth] did not disprove that [Appellant] genuinely believed that

he was in imminent danger that required deadly force and [did] not disprove

either of the other elements of self-defense[.]” Id. at 26-27. Appellant

contends that “[w]hen [Appellant] shot [Mr.] Otero in the head, [] it was his

genuine - but mistaken - belief that under the circumstances, in order to

protect himself, family[,] and friends, he had to use such deadly force in order

to eliminate what was[,] in his mind[,] an ongoing and deadly threat.” Id. at

28-29. Appellant maintains that Mr. Otero and Mr. Mota-Montilla, as well as

other members of their group, started “the firearms infused violence” and that

Appellant and his friends were unable to retreat to safety but, rather, were

“reduced to ducking behind a car at one point” in order to avoid being shot.

Id. at 30. Appellant contends, however, that, although the Commonwealth

successfully established that his action of shooting Mr. Otero in the skull while

he laid on the ground unconscious was “unreasonable and was not in the spirit

of self-defense,” the Commonwealth failed to present sufficient evidence to

disprove that Appellant did not have a genuine belief that such force was

justified under the circumstances. Id. at 29.

In viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, we concur with the trial court, and the

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record supports, that the Commonwealth presented sufficient evidence that

Appellant killed Mr. Otero with malice and the specific intent to kill necessary

to support his conviction of first-degree murder. Dr. Michelle Nagurney, an

associate medical examiner for the Philadelphia medical examiner’s office who

was admitted as an expert in forensic pathology, testified that Mr. Otero was

shot in the back of the head by a gun that was held within an inch of the

victim’s skull. N.T., 1/30/24, at 45, 47, 60, 66-70. Jeffrey Tabarez, an

acquaintance of Appellant, explained that, upon exiting the after-hours club

and prior to the fight ensuing, Appellant took possession of Mr. Tabarez’s 9mm

handgun. Id. at 134-135. Mr. Tabarez stated that, during an encounter with

Mr. Otero, he punched and kicked Mr. Otero and “knocked the guy out.” Id.

at 143, 148. While Mr. Otero lay unconscious on the ground, Appellant shot

Mr. Otero in the back of the skull while holding the handgun within an inch of

a vital organ in Mr. Otero's body, namely his brain. Commonwealth Exhibit

C-87.6 This evidence was sufficient to support the jury’s conclusion that

Appellant shot Mr. Otero with malice and the specific intent to kill him.

In viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, we concur with the trial court, and the

record supports, that the jury, as fact-finder, could conclude that Appellant

did not believe Mr. Otero presented an imminent danger of death or great

____________________________________________

6 At trial, the Commonwealth identified the video footage of the incident as

Exhibit C-87. N.T., 1/30/24, at 89. The video footage exhibited, as contained

in the certified record, is identified as Exhibit C-86.

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bodily injury to Appellant that necessitated Appellant’s act of shooting Mr.

Otero at close range in the back of his skull. As Mr. Tabarez testified, he

struck Mr. Otero with his fist and knocked him unconscious. N.T., 1/30/24, at

143, 148; see also Commonwealth Exhibit C-87. As Mr. Otero lay

unconscious on the ground, he presented no imminent danger of death or

great bodily injury to Appellant or any of Appellant’s friends. This evidence

was sufficient to permit a jury to conclude that Appellant did not genuinely

believe that he, or others, were threatened with death or great bodily injury

at the time he fatally shot the victim. To the contrary, the video surveillance

footage depicts Mr. Tabarez striking Mr. Otero in the head and another

individual “throwing” Mr. Otero to the ground where he lay still.

Commonwealth Exhibit C-87. Mr. Tabarez is then observed kicking Mr. Otero

in the head. Id. As Mr. Otero lay motionless on the ground, Appellant ran

past Mr. Otero, shot Mr. Otero in the back of the head at close range, and ran

further down the street. Id. The evidence is sufficient to both prove intent

to kill and to disprove Appellant’s assertion of self-defense and imperfect self-

defense.

Turning to Case CR-2991, Appellant argues – largely on the grounds

offered as support for his claims of self-defense – that the Commonwealth

failed to prove that he possessed a firearm with criminal intent or an unlawful

purpose and, for those reasons, the evidence was insufficient to support his

convictions for PIC and VUFA. Section 907(a) of the Crimes Code states that

“[a] person commits a misdemeanor of the first degree if he [or she]

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possesses any instrument of crime with intent to employ it criminally.” 18

Pa.C.S.A. § 907(a). Thus, to convict a person of PIC, “the Commonwealth

must establish the defendant possessed “any instrument of crime with intent

to employ it criminally.” Commonwealth v. Dix, 207 A.3d 383, 391

(Pa. Super. 2019), appeal denied, 217 A.3d 790 (Pa. 2019). For purpose of

PIC, an “instrument of crime” is defined as “[a]nything specially made or

specially adapted for criminal use” or “[a]nything used for criminal purposes

and possessed by the actor under circumstances not manifestly appropriate

for lawful uses it may have.” 18 Pa.C.S.A. § 907(d). “Intent can generally be

inferred from the surrounding circumstances. [However, i]ntent to employ a

weapon criminally cannot be inferred from mere possession of the weapon.”

Dix, 207 A.3d at 391 (citations, original brackets, and original quotation

marks omitted).

Appellant concedes that a firearm, such as a 9mm handgun, is an

instrument of crime when possessed by an actor under circumstances not

manifestly appropriate for its intended lawful use. See Appellant’s Brief at 31

(stating, Appellant “agrees that a firearm is statutorily an instrument of

crime”); see also Commonwealth v. Monroe, 422 A.2d 193, 195

(Pa. Super. 1980). Appellant also concedes that he possessed the 9mm

handgun after he took possession of it from Mr. Tabarez. Appellant’s Brief at

32-33 (stating, “Appellant concedes actual possession” of the handgun when

he took the firearm from Mr. Tabarez). Appellant contends, however, that the

Commonwealth failed to present sufficient evidence that he possessed the

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firearm with the intent to employ it criminally. Id. at 33. Instead, Appellant

maintains that “the entire time [he] held the firearm, he was simply trying to

ward off what he perceived to be armed, violent[,] and overall un-ceasing

aggressor decedents[.]” Id. at 34. In other words, Appellant proffers that,

because he used the 9mm handgun in self-defense, he did not have the

requisite intent to use the firearm in a criminal manner. Id. at 33-34.

As discussed supra, the Commonwealth presented sufficient evidence to

disprove Appellant’s claims of self-defense and imperfect self-defense. For

related reasons, therefore, Appellant’s claim that the evidence was insufficient

to support his PIC conviction because he possessed the firearm for purposes

of self-defense fails. Instead, in viewing the evidence in the light most

favorable to the Commonwealth, there was sufficient evidence to support

Appellant’s PIC conviction. The video surveillance footage evidence

establishes that Appellant possessed the 9mm handgun with the intent to

employ it criminally when Appellant aimed the firearm at Mr. Mota-Montilla’s

head, a vital body part, and shot him in the face, causing him to fall to the

ground incapacitated. Commonwealth Exhibit C-87. After several individuals

are observed punching and kicking Mr. Mota-Montilla while he is on the

ground, Appellant is then observed shooting Mr. Mota-Montilla in the chest

and killing Mr. Mota-Montilla before Appellant proceeds to shoot Mr. Otero in

the back of the skull while he lay unconscious on the ground and killing Mr.

Otero. Id.

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Finally, Section 6108 of the Crimes Code stated that “[n]o person shall

carry a firearm, rifle or shotgun at any time upon the public streets or upon

any public property in a city of the first class unless[] such person is licensed

to carry a firearm[, or] such person is exempt from licensing under section

6106(b) of this title (relating to firearms not to be carried without a license).” 7

18 Pa.C.S.A. § 6108. “Philadelphia is the only city of the first class in

Pennsylvania[.]” Sumpter, 340 A.3d at 980. Because Section 6108 does not

state a requisite intent, the culpability, or mens rea, necessary to convict a

person of Section 6108 is set forth in Section 302(c) of the Crimes Code.

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7 On June 23, 2025, this Court held that Section 6108 was “unconstitutional

on an equal protection basis” because, under Section 6108, “persons within

the City of Philadelphia [were placed] at a special disadvantage in the exercise

of their Second Amendment right.” Commonwealth v. Sumpter, 340 A.3d

977, 988 (Pa. Super. 2025) (stating that, a person 18 years of age or older

was permitted to openly carry a firearm without a license elsewhere in the

Commonwealth but the same person was required, under Section 6108, to

first obtain a license to openly carry a firearm in the City of Philadelphia). In

finding Section 6108 unconstitutional, the Sumpter Court announced a new

rule of law that applies retroactively to cases pending on direct appeal so long

as the issue was preserved at all stages of adjudication. Commonwealth v.

Hays, 218 A.3d 1260, 1266 (Pa. 2019) (stating, “where “an appellate decision

overrules prior law and announces a new principle, unless the decision

specifically declares the ruling to be prospective only, the new rule is to be

applied retroactively to cases where the issue in question is properly preserved

at all stages of adjudication up to and including any direct appeal” (citation

and original quotation marks omitted)); see also Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc), appeal denied, 121

A.3d 496 (Pa. 2015); Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa.

2006).

Here, Appellant did not challenge the constitutionality of Section 6108 in the

trial court or on direct appeal. Therefore, the new rule of law announced in

Sumpter does not apply retroactively to Appellant’s appeal.

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Section 302(c) states that “[w]hen the culpability sufficient to establish a

material element of an offense is not prescribed by law, such element is

established if a person acts intentionally, knowingly[,] or recklessly with

respect thereto.” 18 Pa.C.S.A. § 302(c). Thus, in order to establish guilt

under Section 6108, the Commonwealth must establish that the person

intentionally, knowingly, or recklessly possessed a firearm, rifle, or shotgun

upon a public street or public property within the City of Philadelphia.

Section 302(b) defines the pertinent kinds of culpability as follows:

(b) Kinds of culpability defined.--

(1) A person acts intentionally with respect to a material

element of an offense when:

(i) if the element involves the nature of his conduct or

a result thereof, it is his conscious object to engage in

conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant

circumstances, he is aware of the existence of such

circumstances or he believes or hopes that they exist.

(2) A person acts knowingly with respect to a material

element of an offense when:

(i) if the element involves the nature of his conduct or

the attendant circumstances, he is aware that his

conduct is of that nature or that such circumstances

exist; and

(ii) if the element involves a result of his conduct, he

is aware that it is practically certain that his conduct

will cause such a result.

(3) A person acts recklessly with respect to a material

element of an offense when he consciously disregards a

substantial and unjustifiable risk that the material element

exists or will result from his conduct. The risk must be of

such a nature and degree that, considering the nature and

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intent of the actor’s conduct and the circumstances known

to him, its disregard involves a gross deviation from the

standard of conduct that a reasonable person would observe

in the actor’s situation.

18 Pa.C.S.A. § 302(b).

Appellant concedes that “[t]he evidence was clearly sufficient to

establish that [Appellant did not have a] carry permit[,] that he had the

firearm out in the public in Philadelphia, which is a city of the [f]irst [c]lass[,

and] that it was operable.” Appellant’s Brief at 36. Appellant asserts that the

Commonwealth failed to establish that “he possessed the firearm with any

knowing criminal manner.” Id. (emphasis in original). Appellant contends

that he “did purposefully possess the firearm when he took it from [Mr.]

Tabarez’s waistband, but he did so under the genuine – although mistake[ or

]unreasonable – belief that he had no choice but to use deadly force.” Id. at

37. Appellant maintains that he possessed the firearm for purpose of

self-defense. Id. at 35.

Appellant is mistaken in his assertion that, to establish guilt under

Section 6108, the Commonwealth was required to show that he possessed the

firearm on the public streets or public property of Philadelphia with the intent

to commit a criminal act. Instead, the pertinent criminal act is the intentional,

knowing, or reckless possession of a firearm on the public streets of

Philadelphia by a person who is not licensed (or who does not qualify as an

exempt individual). Here, Appellant admits, and the evidence supports, that

he removed the firearm from Mr. Tabarez’s waistband and that possessed the

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firearm while on the public streets of Philadelphia without a license to do so.

Appellant’s Brief at 36-37; see also N.T., 1/30/24, at 134-135, 139;

Commonwealth Exhibit C-87. These were intentional and knowing acts.

Therefore, in viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, there was sufficient evidence to prove

Appellant’s guilt under Section 6108.

In his final issue, Appellant asserts that the trial court abused its

discretion when it ruled that it would permit the Commonwealth to introduce

evidence of Appellant’s prior conviction of Section 6106 of the Crimes Code

(firearms not to be carried without a license) if Appellant presented character

evidence to show his reputation in the community for non-violence and

peacefulness. Appellant’s Brief at 39-43.

Questions concerning the admissibility of evidence lie within the

sound discretion of the trial court, and a reviewing court will not

reverse the [trial] court’s decision on such a question absent a

clear abuse of discretion. An abuse of discretion may not be found

merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as

to be clearly erroneous.

Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa. Super. 2018) (citations

and quotation marks omitted), appeal denied, 195 A.3d 166 (Pa. 2018).

A defendant in a criminal case may offer evidence of a “pertinent”

character trait. Our Supreme Court has defined “pertinent” to

mean “relevant to the crime charged.” It is well-settled that

evidence of a defendant’s good character must be limited to [his

or] her general reputation for the particular trait or traits of

character involved in the commission of the crime charged. Such

evidence must be established by testimony of witnesses as to the

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community opinion of the defendant, not through specific acts. In

addition, character is “a generalized propensity to act in a certain

way without reference to specific conduct, and frequently contains

a normative, or value-laden, component,” such as a character for

truthfulness. Character evidence is inadmissible to prove that a

defendant acted in accordance with that trait on a particular

occasion.

Commonwealth v. Lopez, 321 A.3d 1085, 1088 (Pa. Super. 2024)

(citations, some quotation marks, ellipsis, and original brackets omitted),

appeal denied, 333 A.3d 1043 (Pa. 2025); see also Commonwealth v.

Medina, 209 A.3d 992, 997 (Pa. Super. 2019) (stating, Pennsylvania Rule of

Evidence 404(a)(2)(A) “allows the defendant to ‘put his character in issue,’

usually by calling character witnesses to testify to his good reputation for a

law-abiding disposition, or other pertinent trait of character” (citing

Pa.R.E.404 Comment)).

Of course, the Commonwealth may attempt to impeach those

[character] witnesses. For example, when cross-examining

character witnesses offered by the accused, the Commonwealth

may test the witnesses’ knowledge about specific instances of

conduct of the accused where those instances are probative of the

traits in question. However, the Commonwealth’s right to

cross-examine character witnesses is not unlimited[. T]he

Commonwealth may not cross-examine a character witness about

a defendant’s uncharged criminal allegations[] or a defendant’s

arrests that did not lead to convictions.

Commonwealth v. Kuder, 62 A.3d 1038, 1057-1058 (Pa. Super. 2013)

(citations and quotation marks omitted), appeal denied, 114 A.3d 416 (Pa.

2015); see also Commonwealth v. Hoover, 16 A.3d 1148, 1149-1150

(Pa. Super. 2011); Commonwealth v. Morgan, 739 A.2d 1033, 1035-1036

(Pa. 1999); Pa.R.E. 405(a).

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Appellant argues that his prior conviction of Section 6106, a firearm

possessory crime, was not a crime of violence and, therefore, the trial court

abused its discretion in ruling that the Commonwealth would be permitted to

impeach his character evidence of peacefulness and non-violent behavior by

introducing evidence of his Section 6106 conviction. Appellant’s Brief at 41.

Appellant asserts that the trial court’s ruling caused him to forego his trial

strategy of introducing good character evidence which, if introduced, would

have required the trial court to provide a jury instruction that evidence of good

character may, in and of itself, create a reasonable doubt of guilt. Id. at 40.

Appellant contends that, if such a jury instruction had been provided, his

character evidence of peacefulness and non-violent behavior “would have

directly refuted the malice required to prove [first-degree murder].” Id. at

42.

The trial court explained its decision regarding Appellant’s character

evidence as follows:

Appellant’s prior conviction was a standard example of rebuttal

evidence permitted under the law. The case law clearly states

that if he were to introduce evidence of his reputation for

peacefulness, the Commonwealth would be permitted to use the

prior conviction [of Section 6106] on cross-examination to test the

accuracy of the character witness’s testimony and the standard by

which [the character witness] measures reputation.

A review of the record reflects that [the trial c]ourt permitted

Appellant’s prior conviction for precisely this purpose. At

Appellant’s trial[, the trial c]ourt ruled that the Commonwealth

could challenge the knowledge of Appellant's character witness

regarding Appellant’s reputation for non-violence and

peacefulness using Appellant's [Section 6106] conviction. After

rendering its decision, [the trial c]ourt took the time to confirm

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whether Appellant understood the ruling and agreed with his

counsel’s decision not to call any character witnesses. Ultimately,

Appellant concurred with his counsel’s decision not to introduce

any character evidence.

Trial Court Opinion, 1/16/25, at 18.

If Appellant were to present character evidence of peacefulness and

non-violent behavior through a character witness, the Commonwealth would

be permitted to cross-examine the witness about prior convictions probative

of the character traits in question (peacefulness and non-violent behavior).

The trial court, however, failed to consider whether, or not, Appellant’s prior

conviction of Section 6106 was probative of a reputation of peacefulness and

non-violent behavior. See id. In other words, to determine whether the

Commonwealth should have been permitted to confront Appellant’s character

witness with evidence of Appellant’s prior criminal conviction under Section

6106, the trial court needed to ascertain whether, or not, Section 6106 could

be considered a crime of violence and whether, or not, a prior conviction under

that provision could negate Appellant’s alleged reputation of peacefulness and

non-violence. Kuder, 62 A.3d at 1057-1058; see also Hoover, 16 A.3d at

1149-1150; Pa.R.E. 405(a).

Section 6106 defines the offense of firearms not to be carried without a

license as follows:

§ 6106. Firearms not to be carried without a license

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person who

carries a firearm in any vehicle or any person who carries a

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firearm concealed on or about his person, except in his place

of abode or fixed place of business, without a valid and

lawfully issued license under this chapter commits a felony

of the third degree.

(2) A person who is otherwise eligible to possess a valid

license under this chapter but carries a firearm in any

vehicle or any person who carries a firearm concealed on or

about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license and

has not committed any other criminal violation commits a

misdemeanor of the first degree.

18 Pa.C.S.A. § 6106(a)(1) and (2). Appellant was previously convicted of

violating Section 6106(a)(1) because, as identified by Appellant, his prior

conviction of Section 6106 was graded as a felony of the third degree.

Appellant’s Brief at 41 (stating that, in 2016, Appellant was convicted of

violating Section 6106, a felony of the third degree, which implies that

Appellant violated Section 6106(a)(1)).

In order to prove a violation of either Section 6106(a)(1) or (a)(2), the

Commonwealth would have had to establish that Appellant concealed a

firearm in his vehicle or on his person, while not in his place of abode of a

fixed place of business, without a valid license. See generally, 18 Pa.C.S.A.

§ 6106(a); see also Commonwealth v. Muhammad, 335 A.3d 1047, 1053

(Pa. 2025) (stating that, to convict a person of Section 6106(a), the

Commonwealth must prove that the defendant intentionally, knowingly, or

recklessly (1) carried the firearm in a vehicle or concealed it on his or her

person, (2) was not in his or her home or fixed place of business, and (3) did

not have a valid and lawfully issued license to carry the firearm). The

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distinguishing factor between a conviction of Section 6106(a)(1) and (a)(2) is

the grading of the offense. Commonwealth v. Bavusa, 832 A.2d 1042,

1052 (Pa. 2003) (stating that, Section 6106(a)(2) does not require additional

elements to secure a conviction under Section 6106(a) but, rather, provides

for a lesser gradation of an unlicensed firearm offense where the accused has

no history of a disqualifying conviction and remains eligible for a license). If

a defendant violates Section 6106(a)(1) but was eligible to obtain a license

and failed to do so before possessing a concealed firearm, then the defendant

violates Section 6106(a)(2) and his offense would be graded as a

misdemeanor of the first degree. Compare 18 Pa.C.S.A §§ 6106(a)(1) with

18 Pa.C.S.A. § 6106(a)(2); see also Bavusa, 832 A.2d at 1052. Because

Appellant was convicted of violating Section 6106(a)(1) and not (a)(2),

Appellant either committed another criminal violation, thus negating the

character traits of peacefulness and non-violent behavior, or he was not

eligible to obtain a license to carry a firearm. Among the enumerated reasons

a person is not eligible to obtain a license to carry a firearm is the fact that

the individual’s “character and reputation is such that the individual would be

likely to act in a manner dangerous to public safety.” 18 Pa.C.S.A.

§ 6109(e)(1)(i). Thus, ineligibility to obtain a license to carry a firearm also

negates the character traits of peacefulness and non-violent behavior. As

such, if Appellant called a character witness for purpose of presenting his

alleged reputation of peacefulness and non-violent behavior, the

Commonwealth would have been permitted to cross-examine Appellant’s

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character witness regarding the witness’s knowledge of Appellant’s prior

violation of Section 6106(a)(1). Therefore, we discern no error of law or abuse

of discretion in the trial court’s preliminary ruling regarding the admissibility

of Appellant’s prior conviction of Section 6106(a)(1) for purpose of negating

character evidence of peacefulness and non-violent behavior.

Judgments of sentence affirmed. Petition to withdraw as counsel

granted.

Date: 12/2/2025

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