-: SJC-12733.
Commonwealth B Joelle, quails.
-: Good afternoon.
-: Good afternoon, Madam Chief Justice,
and may it please the court.
As a result of a highly unusual sequence of events
that occurred at the end of this trial,
starting with the jury's initial effort
to return a verdict on the murder indictment,
the defendant's conviction
for felony murder armed robbery
must be vacated for two different reasons.
First, that conviction was predicated
on an invalid predicate offense.
When the jury came back with that initial verdict,
it had been asked a special question.
Did the defendant assault anyone other than the decedent?
It answered that question, no.
Assault of course is a necessary element of armed robbery.
So by making that specific finding,
the jury necessarily
made any predicate offense involving armed robbery
and those other individuals
who were in the house during this incident,
not a viable predicate offense.
-: What about the armed robbery involving Somato?
-: Well, with respect to armed robbery
involving Somato, your honor,
there was no evidence at trial
that there was any armed robbery from Somato
and the Commonwealth has conceited in his brief
that there was insufficient armed robbery.
-: And that's because the element of taking is missing?
Defense Lawyer: Well, that's correct, your honor.
That is an element--
-: So, assuming that I agree with you
and it seems like you're right,
the Commonwealth has conceded that point.
Why is it insufficient to say
that there was an attempted armed robbery,
given that the other elements were there?
And the theory of the case,
it seems to me from the closing arguments
were that they tried to get the money from Somato.
-: Well, that's the Commonwealth's argument, your honor.
-: Yeah, I know,
I'm trying to figure out what your response is.
Okay, well, there are several responses.
First, your honor
as in Commonwealth vs Scott,
which is, I submit directly on point,
this case, the predicate that was charged in this case,
the only predicate was armed robbery,
not attempted armed robbery.
That is a very distinction
that this court pointed to in Scott.
So it was not a predicate that the Commonwealth set forth,
that they asked for a jury instruction on,
they didn't ask for it to be on the jury slip.
The jury was not given attempted armed robbery
as a alternative predicate offense.
-: But they were though, just to clarify, instructed
that in order to convict the defendant of felony murder
they could find that he attempted
to do the predicate offense.
-: Well, your honor,
that is part of the definition
under the statute of felony murder.
So that it always reads
during the commission or attempted commission
but as in Scott, it wasn't, that was not their theory.
I mean, if you look at the closing argument,
the prosecutor said what's the felony?
Holding people up at gunpoint.
They never asked for an instruction
specifically on attempted armed robbery.
They never asked for that to be on the verdict slip
and moreover your honor--
-: Wait a second, it was never on the verdict slip?
Defense Lawyer: No, your honor.
The verdict slip says armed robbery.
-: Oh I see, yes, yes, yes, yes.
-: Eventually they get the attempt instruction.
Defense Lawyer: Well, eventually your honor,
the fourth time after instructing the jury
for the fourth time, the Commonwealth, the very end said,
oh could you please instruct them on attempt?
And the judge did give a generic instruction
on attempt, right?
-: But the statutory definition, as you said
you may think it's boiler plate,
but the statutory definition he gives throughout
and then based upon which,
and I agree with you, Mr. Salton, the procedure is haywire,
but at the very end,
he does properly instruct on the elements of an attempt.
And he's convicted after that instruction, correct?
-: Your honor, he tells them what attempt is.
It's a generic instruction on attempt.
It's not an instruction on attempted armed robbery.
He doesn't specify any possible overt acts.
And basically what the, what the Commonwealth
wants the court to do is to take the jury's verdict
which is felony murder, armed robbery,
and try to essentially figure out
what the jury must have been thinking.
That's not, I mean, under Plunkett
and that whole line of cases,
you're not supposed to try to figure out
if there alternative predicates
and some of them are inadequate.
It is not for this court to try to figure out, well
this is the one they probably relied on.
It's gotta be necessary and unavoidable.
It wasn't necessary and unavoidable here.
The cases where--
-: Is that a due process issue, Mr. Sultan, as far as notice?
-: Well, it, it is a new process issue, your honor,
because, and the fact that it was not,
that the Commonwealth did not ask
for an attempted armed robbery as a predicate,
did not ask for that to be listed on the,
on the verdict slip,
of course, the defense counsel is dealing
with the cases that's presented.
It's dealing with the case as argued.
-: And I don't have this app on my fingertips.
What did Mr, how did Mr. Darrell defend the case,
Mrs. Sultan, as far as,
because I get your point that judge Chin's verdict slip
had some failures as far as the assault,
anyone, it could have been a lot clearer
and the government argued essentially.
They were assaulting all these other people in the jury
didn't buy that.
What did the defense argue?
-: What was the defense?
The defense at trial, your honor--
-: Yeah I guess the first defense, right?
What was the defense?
Well the defense was that the two witnesses
who basically identified Keely's
as being the perpetrator or a primary perpetrator,
tell us Francisco and Kiarra,
the one who was kind of playing both sides
were not credible witnesses.
That was the thrust of the defense.
And, and obviously if the jury had bought everything
its witnesses had said,
they presumably would have convicted the defendant on,
on more counts and on more theories.
But again, I don't want to play that game either.
I've tried to psychoanalyze
what the jury must have been thinking.
The Commonwealth chose to try this case
the way they chose to try it.
They could have asked for attempted armed robbery
of Somato as theory.
They could have asked her that--
-: Attorney Selton, attorney Selton.
I understand your point.
And I just, if you putting aside everything,
handed me the verdict slips that exist now
after everything was said and done,
what would I conclude
from looking at all of those verdict slips?
-: Well, your honor, what you would conclude is
that jury made a, a specific finding
that nobody else was assaulted
and they ultimately returned a verdict of felony murder,
armed robbery, when there was no basis to find
that Mr. Kiles had committed any armed robbery.
And under Scott,
that theory shouldn't have gone to the jury at all.
Now the court can try to say, well,
they must have been thinking about attempted armed robbery
of Somato and that's close enough.
That's not how this system works.
I mean, there is, as justice Caggiano says,
there were due process concerns here.
-: So then could you address the case load
that says that an absence of a finding isn't defined in
and makes the issue still live?
-: Well, I agree with that,
I mean, that case law has been written, Carlino,
has been recently reaffirmed by this court
and I'm not, I'm not here to quarrel with that.
They have every right to retry, Mr. Keeley's
for a deliberate premeditation, first degree murder,
and extreme atrocity or cruelty first degree murder.
Those two theories, you're right, your honor,
they were blanked under this court precedence.
That's not a verdict.
They can retry him on those theories.
They cannot retry him on the theory of felony murder,
armed robbery, because there was insufficient evidence
based on the jury's fact-finding
and based on the lack of a taking from Sonato
that the defendant committed an armed robbery of anyone.
-: So you're saying, basically the first verdict
acted as an acquittal because of straight arm robbery.
And then it's a due process violation
to add in all the attempts.
-: Well, I don't think you can have attempted armed robbery
without an assault either.
I mean, I...
-: Right.
And we know assaults on other than the victim.
So they found that the victim was assaulted,
I guess, if you do the,
if you do the double negative, correct?
-: The jury did find that,
that the decedent was, assaulted, that's correct.
-: Right, so they found that,
and that would fit into the attempted armed robbery
if there was no taking from his person, correct?
-: If the Commonwealth had tried the case
on theory of attempted armed robbery used Somato,
if that had been on the verdict slip,
if you're asking me was there sufficient evidence
by which the jury could have convicted him?
The answer is probably yes,
-: Okay. -: But we can't,
it's just tried.
-: I take your point that the government
is stuck with the theory they ride into it.
But if it was a pristine verdict slip
and the judge had instructed the felony murder
could be attempted armed robbery
and then the home invasion would be the assault
and everybody else, you wouldn't be here arguing that point.
-: Oh, I think he had to, your honor,
once they came back with that special finding,
the judge had to do more than that
because the judge had to take certain predicates
explicitly off the table, by not saying anything to them
about the impact of that special finding.
He left open a whole bunch
of different potential predicates,
which were clearly invalid.
And we don't know that the jury didn't rely on
any of those clearly invalid predicates and under,
Plunkett, forgot it, and those cases--
-: Can I ask, Mr. Sultan-- -: No, you have to,
you have to run a new trial.
-: Mr. Sultan, what is the significance, Mr., Mr. Sultan,
what is the significance,
he's convicted of armed assault with intent to rob Somato,
right? -: Yes, your honor.
-: And that, what,
that can't be a predicate for felony murder, why?
Sorry, I'm just trying to make sure
I understand that part of it.
-: That can't be a predicate of felony murder
because it's not a life felony.
-: Okay it's not a life felony.
-: Brown, it's not second degree felony murder.
So that's not, that can't be the predicate.
But if that were a life felony, I wouldn't be here.
Then the case would be just like cases like Blackwell
and Berry, where this court has said, look,
there's a jury convicted on the underlying life felony.
Therefore it's a valid felony murder conviction--
-: Is attempted armed robbery a life felony?
-: Attempt, well attempt is not, no,
attempted armed robbery-- -: Right,
so I guess that's my question then.
If Scott is right,
or the way you're interpreting Scott is correct.
I don't understand how somebody could be found guilty
of felony murder if the predicate
must be attempted armed robbery
if that's not a life felony.
-: Because the statute, because 265-1 I think says,
that a killing that occurs during the commission
or attempted commission of a life felony.
-: Right, and so the predicate has to be armed robbery
not attempted armed robbery.
The life felony has to be armed robbery.
And then it's the jury's determination
as to whether they only attempted to do it
or he actually committed it.
-: You're right your honor.
The underlying felony is armed robbery.
-: Right.
So why does the verdict slip have to say
attempted armed robbery?
-: Because that is a specific theory
which would support the return
of a first degree felony murder verdict.
And that's not the way this case was tried.
It was not presented to the jury that way.
The Commonwealth didn't ask it
to be presented to the jury that way.
It's different from some other cases
where that particular theory is presented to the jury,
explicitly. -: Can you remind me
of our case, so I'm missing something on that
where we've never said
that you have to have a separate indictment, right?
To support that, a felony...
Right, so what does our case, let's say,
Mr. Salton, as far as notice
in what goes properly to the jury to get that instruction?
-: Well, your honor, I think, I mean, frankly
the best case is really Scott and the language and Scott
which I quoted in my brief is really quite clear.
It says the predicate felony asserted
by the Commonwealth in this case was armed robbery,
not attempted armed robbery.
And then it goes on to say, if at a retrial
the Commonwealth produces sufficient evidence to
support a finding of armed robbery,
then the jury may return a verdict of a felony murder
in the first degree.
But it goes on to say, if the Commonwealth does not aduce
sufficient evidence to warrant a finding of armed robbery,
a felony murder charge obviously could not
be put to the jury on the basis of armed robbery
on that predicate felony.
-: And your argument that the boilerplate language,
when the judge reads, you know, felony,
or attempt the commission of a felony,
coupled with the final instruction on intent,
doesn't cut it.
-: Right, it's gotta be an instruction
on attempted armed robbery.
It has to make clear that that is the predicate.
That's what Scott says.
It's got to say the predicate charge here
or the theory of the Commonwealth
is attempted armed robbery.
-: And remind me, I thought that the discussion about,
that lead judge Chin to give the attempt,
had to do with the armed robbery.
-: Well, all, well what'd he said is,
with respect to felony murder, and then he gave a generic,
a generic definition of the attempt.
He did not tie it to armed robbery.
He did not talk about overt acts relating to armed robbery.
It was a generic attempt instruction.
That's all that it was.
And I mean to cobble that together with this verdict slip
and somehow say the jury was presented with this theory
in a clear fashion is, is just to to change what happened.
I mean process is important.
It's never more important than a first degree murder case.
This process cannot justify
a first degree murder conviction, it just can't.
-: Attorney Sultan, I understand your argument.
And I understand there's a case that says
you can do what the judge did
in terms of sending somebody back.
But if you're the, if I'm the juror
how am I going to interpret the judge
sending me back to reevaluate something?
-: Well, I'm really glad you asked that question your honor
because that really goes to the second ground
why this conviction cannot stand.
And that is because the judge through his course of conduct
basically led the jury, improperly,
to return a first degree murder conviction.
And I'm not suggesting that the coercion was overt.
I'm not suggesting it was any improper intent
on the judge's part.
But if you look at the sequence of events
they come back with the first verdict.
He says this is not a valid first degree murder conviction,
verdict.
He sends them out to, to deliberate further,
solely on second degree with a new verdict slip.
They spend an hour deliberating on second degree only.
Then the next morning he completely reverses course,
says that was a mistake.
Go back and deliberate further on first degree
including felony murder, armed robbery.
And by the way, here's the, here's a little
instruction on attempt just to give you a little roadmap
of how you can get there and what that communicated,
I submit, your honor,
It is telling a jury not directly, but indirectly,
you messed up yesterday
in returning your first degree murder verdict.
You can fix your mistake
by returning another first degree murder verdict.
And by the way, here's how to do it.
-: Now, does it matter in your analysis there
that the judge actually said, I made a mistake yesterday,
sending you back with a second degree murder,
not you made a mistake.
Well, I think it was, it would have been worse
if you said you made a mistake,
but what he's communicating is whoever made the mistake,
he told them originally they made a mistake
because he said this is not a valid
first degree murder conviction.
The mistake he said he made,
was sending them out only on second degree.
And, and so what's communicated to them is
this is what we're supposed to do.
They come back an hour later.
And just last week, in a case,
this court said that in evaluating coercion,
whether or not something was coercive,
it's important to look at how much time passed.
Well, here it was,
I think 55 minutes or an hour or 65 minutes.
I forgot exactly what it was, but it was essentially an hour
between that instruction and the verdict.
And I think that reinforces
that this course of conduct was unwittingly coercive.
And, you know, the judge was faced with a tough problem.
I mean, some of you have been trial, judge.
You've been in that position
when something unexpected happens,
he did the best he can.
But what he did, does not comport with due process.
And I asked the court to vacate the conviction
and remanded for a new trial.
-: Thank you Attorney Sultan.
Attorney Black.
-: Thank you, your honor.
May I please that court ADH Johanna Black
for the Commonwealth.
I'm just going to briefly touch
on Justice Gaziano's question about fair notice.
The defendant provided the murder indictment
in his record appendix
I believe it is page 18 of his record appendix
and the Commonwealth submits that the indictment
in that form is sufficient fair notice under due process
as to the murder indictment or the murder charge.
Now, as everyone knows,
the Commonwealth can proceed under
any of those three theories.
Felony murder extreme atrocity, or cruelty
or deliberate premeditation.
And I think essentially just the indictment itself
answers the due process question
of whether the defendant had fair notice of that charge.
Again--
-: The indictment just says,
every indictment says due assault and beat, right?
-: Right, and that's been held to be sufficient.
-: Right, well, I mean, that's sufficient to give,
give notice that there's a murder indictment
but you couldn't ask the judge to instruct on carjack.
And I mean, it has to be,
there has to be a predicate felony
that's announced to the defendant, correct?
-: Well-- -: When that happens
is a matter of, I guess, relative it's relative,
but you, the defendant has to know what felony
he or she is defending, correct?
-: Right, no, that's true.
I think the case law that shows a predicate felony
does not have to be charged
also stays in the Commonwealth favor
Here, I think the defendant would learn that information
which predicate felony as the Commonwealth
was proceeding on during discovery, it's always up to them.
If they'd like to request a bill of particulars--
Female Judge: And what was that predicate felony?
-: At trial, the Commonwealth stated them as armed robbery
and armed-- -: Wasn't it armed robbery
of the other two victims?
-: No, I think if you look at
the Commonwealth's opening and closing
and the evidence they presented,
the way in which they presented it,
it was clear to the jury that the Commonwealth is moving
on the attempted armed robbery of the victim.
I think what matters in this case
and I know there's a lot of discussion about,
about whether armed assault with intent to rob
qualifies as a predicate felony that would raise,
I'm being wordy, but raise murder up to first degree
under Brown or whether attempted robbery does
or whether it's only armed robbery
and the case law is consistent.
And there's a long line in the history of case law
that attempted armed robbery
is a sufficient predicate offense
for first degree felony murder.
Brown did not change that.
In fact, Brown was convicted of the predicate,
attempted armed robbery and or joint venture theory.
This court reduced his conviction under 33E
in the light of the facts being that he wasn't at the scene.
He provided a gun and I believe two--
-: As I go to the charge conference,
the judge that I'm going to instruct on armed robbery,
I think he was talking about the decedent
and then armed assault
and that's when he raised the merger issues
and which led them to the special questions that went awry.
The charge then becomes premeditation,
atrocity, cruelty, felony murder,
armed robbery, and or armed home invasion.
Other than the boilerplate language.
He never says anything and there's no discussion
about attempted armed robbery or instruction on that.
-: Right. -: Did the prosecutor argue,
it was explained the way the lack of a taking
to say it was an attempted armed robbery?
-: [Female Prosecutor] Did she explain away?
-: Yeah, so I mean,
I'm looking at the theory of the case.
Was it an armed robbery and attempted armed robbery?
That's what I'm trying to get at.
-: Right. I think we indicted the defendant
for two armed robberies.
One of Al's, one of Gomez
the jury found unanimously that he was not guilty of either.
We proceeded on the theory, our primary theories
of the case was that the defendant wanted,
he intended to rob the victim, but he failed.
And that is interesting with predicate felonies
because the named predicate felony,
as you said in this case, was armed robbery.
That is the felony that we were asserting
justifies a conviction of first degree murder.
That was a felony.
We were starting the defendant intended to commit
against Jonathan Somato all along
from February through the night he died.
And I think, as I said,
Cannon, Houston, Brown, Evans,
dating back to I think the 1980s
attempted armed robbery sufficient
even though attempt itself is a crime,
is not punishable by life.
-: Yeah but he was-- -: The attempted commission
of the predicate felony.
-: Have we ever said that an instruction
that just gives the boiler plate definition of felony murder
without instruction on attempt is sufficient?
-: No, that I could find, no,
but there is the case Nundial,
that was cited in both of our briefs.
In that case,
as far as I could find from the facts that were cited
the court instructed the jury on statutory murder.
So felony murder, maybe a killing that occurs
in the commission or attempted commission of a felony,
maybe felony murder.
And then it was,
and it seems like that was the only instruction
that was given.
Unlike our case where the judge did ultimately
instruct on attempt.
And I don't think he could have been any more specific
because there is no specific definition
of an overt act in terms of attempted armed robbery.
It could mean one of many things.
So where the timing of the instruction,
in light of the instructions he gave along with it
I think that shows a jury knew the only charge
that the attempt instruction was applicable to,
especially having been instructed
that felony murder is a killing that it can occur
in the attempted commission of a predicate felony
would have been the predicate armed robbery.
And I think that case distinguishes this,
distinguishes this case from Nundial,
where it appears from the facts of that case
that the court only gave the statutory instruction
that felony murder is a killing and the commissioner
attempted commission of a crime.
Here, the jury got that as well as what attempt means
and I don't think that there's a specific
attempted armed robbery instruction to give where
many different acts can be an overt act.
You can define what an overt act is, but not necessarily
in the context of what it's going to be
for a particular crime
each and every time that crimes committed, so...
-: Can I ask you to address Counsel Sultan's point
that the sequence of events became coercive?
-: Sure. -: Not that there was
any intent to coerce the jury, but you know,
that's an invalid verdict, go back on second degree.
Oh, oops, I made a mistake.
Here's an instruction on attempt,
even though I never gave that to you before.
Why is that not a direction to the verdict,
to the jury to come back with the verdict
that they ultimately came back with within an hour?
-: So, I think that the judge, the case log shows that
a judge is entitled to state the law as is.
And that's what Judge Chin did.
He made a mistake.
He was entitled before a verdict is rendered or returned
and recorded, I should say, to correct any mistakes
and to make sure that the jury is given
the correct and applicable law.
And that's what he did.
The...
-: What's your best case for the proposition
that this scenario is not coercive?
-: So I named a number of cases in my brief,
but I think the best case...
If I could just have a brief minute.
It's difficult for me to pick one
because I think when you look at the principal stated
in a number of cases and
and apply them to what happened here,
it shows that it was not coercive but,
let me try to find the best case.
I'm sorry, I don't have this off the top of my head for you.
Would your honor consider the Commonwealth filing
a 16-L letter with it--
-: No, if it's just something that's in your brief,
I can find it.
I can find myself, I just thought if you knew off hand.
-: I did list a number of cases.
I think this case is distinguishable from Zacharias
because if you read judge Chin's words
and his explanations for why instructions were coming
when they came,
it shows that he's, it wasn't coercive,
that he was just simply stating a lot
and why they're now getting this law.
And I think because the jury initially
convicted the defendant on armed home invasion,
armed robbery wasn't necessarily the focus
of their deliberations at that point.
It became the focus of their deliberations
once merger rendered their initial first degree
murder conviction invalid.
So, I'll just move on to,
just back to the armed robbery, attempted armed robbery
armed assault with intent to rob issues.
I did cite Blackwell in my brief
as a reason why what happened in this case
did not prejudice the defendant.
I think the case of Commonwealth
vs Berry, B-E-R-R-Y 420 MASS-95,
specifically pages 110 to 112, it's a 1995 case
I did not cite in my brief, I realized,
but that also lends support.
That was a case where a defendant was convicted of,
first degree murder, a general verdict,
as well as burglary with, burglary with actual assault.
And the court found that it was not plausible to conclude
that the jury found Berry committed the assault
which consisted of the stabbing that killed the victim
but did not find the stabbing cause of victim's death.
And that's JC there,
this court there concluded, unavoidably,
the jury unanimously found felony murder
when they were trying to figure out
which theory the jury based their general verdict on
and similar to that case,
the defendant here was convicted unanimously
of armed assault of Jonathan with intent to rob Jonathan.
And he was also committed of,
convicted of felony murder of Jonathan.
So the jury found that the defendant killed Jonathan
and they found that he assaulted Jonathan
with an intent to rob him.
And just like in very, it's not plausible think that
the stabbing that caused the victim's death in this case
was...
that it was...
Sorry, that the stabbing, that they,
that's, I'm not phrasing this correctly.
It's just, I think when you compared this,
the facts of this case to that and Berry,
it's not plausible to think that the jury based
their felony murder conviction on the defendants acts
against the other occupants of the apartment
where they found that the stabbing killed Jonathan.
And that, that stabbing was a part
of the defendant's attempt to Rob Jonathan.
It's not plausible to think that
they would have based their felony murder conviction
on his acts with respect to the others in the apartment.
Jonathan, semi-ed all the victims.
His victim wasn't even in the room at the time
the defendant was alleged to have committed the acts
against the other occupants.
I think the Benitez B-E-N-I-T-E-Z case,
it shows that armed assault with intent to Rob
is a lesser included offense of armed robbery.
And the Lededo case that I cite in my brief
shows that on certain facts,
armed assault with intent to rob
is equivalent to attempted armed robbery,
which although attempt crimes aren't punishable
by life in prison,
when you attempt to commit a predicate felony
that is punishable by life in prison,
you can be convicted of first degree felony murder
and here, like Lededo,
the facts show that the assault was an overt act.
The armed assault with intent to rob Jonathan
also qualified as an overt act
for an attempted armed robbery of Jonathan.
So when, like in Ledeto on these facts,
armed assaults with intent to rob Jonathan
is equivalent to attempted armed robbery of Jonathan.
And...
it is confusing that attempt itself
isn't punishable by life imprisonment.
But if you attempt a felony that is,
you can be convicted of first degree murder
if someone dies.
I think what that shows is the intent that someone has
to commit the predicate felony that is punishable
by life imprisonment is significant,
and that's a major reason why
they are held culpable of first degree murder of,
liable for first degree murder.
And here, all day long, the defendant intended
to rob, to commit an armed robbery of Jonathan.
He just failed in doing it.
And...
Just going to go over my outline very quickly.
I also do think
that the McGrath case provides support for,
it isn't so much about the name of the predicate felony.
It's about the facts and the intention of the defendant,
what felony he intended to commit.
The McGrath case that I cited in my brief,
they weren't sure whether the defendants committed
an attempted armed robbery or an armed robbery,
but the defendant there was convicted
of first degree murder.
And that was upheld.
I think, the Brown case,
in reading the footnotes and the,
and I know Justice Gaziano
was a major part of that decision,
I do think that it lends support for the instruction
on armed robbery, because that was the predicate felony
that triggered the liability for first degree murder.
And the jury were told that they didn't have
to find the defendant completed the armed robbery,
they could find he just attempted it.
And then, and when you read the felony,
other felony murder instructions, it's,
there's heavy emphasis on intent.
I think the case is also,
I think it's the Holly case, the recent Holly case,
I think it's 2017,
it's the one that says the killing can occur
before or after the completion of the predicate felony.
I think that also lends support that felony murder
isn't something that I, that I almost,
I don't know how to phrase this properly,
but it's more about intent than maybe, and the evidence
and what the evidence showed them specifically about...
like in this case,
the fact that it was armed robbery on the verdict
and I think that the defense is not prejudiced by that.
I mean, we definitely could have put
attempted armed robbery on the verdict slip
and that might've saved some headaches
but this court has the authority, if you want,
to reduce the predicate felony to attempted armed robbery
and the defendant is still liable for first degree murder.
His conviction should still be affirmed
Attempted armed robberies
is a lesser included offense of robbery, armed robbery,
and the evidence was sufficient of that.
I do want to just point out two things
in defendant's reply brief,
he claimed the Commonwealth made an argument
that the defendant commanded Jonathan
to empty his pockets out of whole cloth,
that, maybe, if the Commonwealth provides
some more pages in it citation,
it would render the evidence supporting that claim clearer.
Those pages would be pages 112 to 117 of transcript four.
If you read those pages,
it's clear that Gomez is speaking of all three,
including the defendant approached on Smino
and ordered him to empty his pockets.
But in any event, Commonwealth didn't have to prove
that the defendant specifically said that to Jonathan
as it was a joint venture theory.
And additionally, in transcript two
during Ariosis testimony, pages 188 through 196
and particularly on page 192,
she names the person she's speaking of as PC
but it's from the context, it's clear that she's speaking
of Jonathan Someto,
and that also lends support for the Commonwealth claim
that the defendant ordered Jonathan's Somato
to empty his pockets.
But again, it was a joint venture theory and the evidence,
including it was the defendant's plan to rob the victim.
He was the one who gathered his friends.
He went in and grabbed clothes and shoes with his friends.
He found out who the victim was with, Johnson
who Jonathan Somato was with,
found out where Jonathan Somato was.
He got everyone to where Jonathan went,
he got everyone inside the apartment where Jonathan was,
he ordered his buddies to rob everyone,
which he knew included Jonathan.
He kept the knife that he had obtained
to gain entry to the apartment
after he entered the apartment.
And he approached Jonathan with that knife
while his co-renter held a gun to Jonathan
demanding he empty his pockets.
If you don't find the defendant himself was demanding that.
And then, if there are any questions,
I'd be happy to answer them.
-: Okay, it looks like we're all set.
-: Thank you very much. -: Thank you, your honors.