J-S07028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HENRY DIAZ-AYALA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1223 EDA 2022

Appeal from the Judgment of Sentence Entered December 16, 2021,

in the Court of Common Pleas of Montgomery County,

Criminal Division at No(s): CP-46-CR-0001882-2019.

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 4, 2023

After a jury convicted him of felony murder, criminal conspiracy, and 

related offenses,1 Henry Diaz-Ayala appeals from the judgment of sentence of 

incarceration for life without the possibility of parole. We affirm.

Around 9:10 p.m. on January 23, 2019, Diaz-Ayala, Justin Mitchell, and 

Russel Montalvo-Fernandez broke into the home of David Pass and his father, 

Ralph Williams. Carrying guns, the men intended to rob Mr. Pass “of money 

he owed to Mitchell, who in turn owed it to [Diaz-Ayala] and Montalvo[-

Fernandez].” Trial Court Opinion, 6/24/22, at 4.

While Montalvo-Fernandez and Mr. Pass were on the third floor, DiazAyala was with Mr. Williams in his second-floor bedroom. Mr. Williams resisted 

and stabbed Diaz-Ayala, who screamed. Upon hearing Diaz-Ayala’s scream, 

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1 See 18 Pa.C.S.A. §§ 903(a)(1), 907(a), 2505(b), 2702(a)(1), 3701(a)(1)(i), 

3701(a)(ii), and 3701(a)(1)(iv).
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Montalvo-Fernandez shot Mr. Pass in the leg and buttocks. MontalvoFernandez ran downstairs, where he repeatedly shot and killed Mr. Williams.

The three home invaders fled the scene. Diaz-Ayala left a trail of blood 

from Mr. Williams’ bedroom, down the stairs, through the kitchen, out the 

back door, and into the street. Montalvo-Fenandez drove Mitchell home and 

then took Diaz-Ayala to a hospital.

Several months passed, and police eventually apprehended Diaz-Ayala 

and Mitchell. Meanwhile, Montalvo-Fernandez escaped to Mexico with the help 

of his close friend, Elijah Moody.

The Commonwealth chose to try Diaz-Ayala and Mitchell together. DiazAyala moved to sever his and Mitchell’s trials. Diaz-Ayala argued a joint trial 

would prejudice him, because the codefendants had conflicting theories of 

what occurred on the night of the home invasion. Also, the Commonwealth 

intended to admit Mitchell’s grand-jury testimony against Mitchell, and DiazAyala feared that testimony would incriminate him without an opportunity to 

cross-examine Mitchell. The trial court denied severance.

Also, the Commonwealth filed a motion in limine to admit the testimony 

of Elijah Moody regarding statements Montalvo-Fernandez made to him in the 

days after the homicide. The trial court granted the Commonwealth’s motion 

and explained its ruling from the bench as follows:

It’s important to note that Moody and Montalvo[-

Fernandez] were friends prior to the homicide. It’s also 

important to note that, at the time these statements were 

made, [none] of the defendants had been arrested for 

homicide. The case law does say that the conspiracy ends 
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upon arrest. We don’t have that in this particular situation. 

We know that Mr. Moody testified before the Investigating 

Grand Jury on two occasions, that being September 3, 2019 

and . . . July 24, 2019.

On August 7, 2019, he and his attorney met with 

Detective Mitchell, and I’ll quote, “to clarify false information 

that he previously testified to before the Investigating Grand 

Jury.” There was no question-and-answer statement taken 

at the time, and it is not clear from the record why no formal 

statement was taken. It’s also not clear what generated this

meeting on August 7th. Was Mr. Moody being threatened

with contempt of court for lying to the grand jury? It’s just 

not clear. But a police report was generated, and it says 

various things that Montalvo[-Fernandez] is reported to

have said to Moody.

At some point, . . . Mr. Moody came to Detective 

Mitchell, and he did give a Q-and-A statement. I believe it 

was two pages and basically adopted a police report. That

was March 12, 2020.

So, what we have here is knowing the facts of this 

case, we know that the three people came together. After 

the homicide, they left in a car together. Two of them were 

wearing masks during the crime. We know that there was 

cell phone contact between them, after the time and prior 

to their arrest. I think it can be readily inferred that there 

was an agreement, as part of the original plan, to get away 

with the crime, to cover up, to evade capture, and I think

that can be readily inferred as part of the plan. So, I find 

that the conspiracy did not end. The statements were made 

in furtherance of the conspiracy, and they are admissible.

N.T., 7/15/21, at 18-19.

The matter proceeded to trial. The jury convicted both men, and the 

trial court sentenced Diaz-Ayala as described above. This timely appeal 

followed.

Diaz-Ayala raises three appellate issues:
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1. Whether the trial court erred and abused its discretion 

in denying [Diaz-Ayala’s] pretrial motion to sever?

2. Whether the trial court erred and abused its discretion

in permitting hearsay evidence at trial . . . ?

3. Whether the trial court erred and abused its discretion

in giving a confusing progression charge to the jury,

which led to an inconsistent verdict?

Diaz-Ayala’s Brief at 5. We address each issue in turn.

1. Motion to Sever Codefendants’ Trials

First, Diaz-Ayala challenges the trial court’s denial of his motion to sever

his trial from that of his codefendant, Mitchell. 

At the outset of his brief, Diaz-Ayala correctly acknowledges that “The 

decision whether to sever trials of codefendants is one within the sound 

discretion of the trial court and will not be disturbed absent a manifest abuse 

of discretion.” Id. at 2 (citing Commonwealth v. Morales, 494 A.2d 367, 

372 (Pa. 1985)). Further, Diaz-Ayala correctly defines an abuse of discretion

as “[n]ot merely an error of judgment, an abuse of discretion occurs when 

[(1)] the law is overridden or misapplied; [(2)] or the judgment exercised is 

manifestly unreasonable; or [(3) the decision is] the result of partially, 

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

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)). In addition, he 

correctly reiterates our standard of review in the argument portion of his brief. 

See id. at 19.

However, Diaz-Ayala never indicates which type of abuse of discretion 

the trial court supposedly committed. Rather than identify the alleged abuse
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of discretion, Diaz-Ayala argues why the trial court should have severed his 

and Mitchell’s trials, as if our standard of review were de novo. 

He asserts he “established during pretrial hearings that the antagonistic 

defenses would cause him prejudice at a joint trial.” Id. at 20. Diaz-Ayala

then relitigates his arguments from below, instead of explaining how the trial 

court’s reasoning was manifestly unreasonable, what law the court overrode, 

or how its decision arose from bias or prejudice against him. 

Moreover, Diaz-Ayala suggests that the “scales of justice should have

tipped toward protecting [his] right to be tried separately due to the strong 

antagonistic defenses.” Id. at 21 (emphasis added). He contends that, 

because he “showed that he would be prejudiced by a joint trial, and in fact 

prejudice resulted, the trial court should have ordered separate trials for the 

defendants.” Id. (emphasis added). 

When reviewing for an abuse of discretion, we do not ask how the scales 

of justice should tip or reconsider how a given judicial officer should exercise 

discretion, as if we were sitting in the place of the trial court. Even if we

disagree with a trial court’s judgment on the severing of codefendants’ trials, 

Pennsylvania courts have long held that an “abuse of discretion is not merely 

an error of judgment, but rather a misapplication of the law or an 

unreasonable exercise of judgment.” Johnson v. Johnson, 222 A.3d 787, 

789 (Pa. Super. 2019). Thus, it is insufficient to convince us that “the lower 

tribunal reached a decision contrary to the decision that the appellate court 

would have reached.” B.B. v. Dep't of Pub. Welfare, 118 A.3d 482, 485 
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(Pa. Cmwlth. 2015) (some punctuation omitted). Instead, an appellant must 

persuade this Court that one of the three abuses of discretion occurred. See 

Montalvo, surpa. 

Here, Diaz-Ayala disregards our deferential standard of review for 

orders denying motions to sever codefendants’ trials. He does not argue –

much less convince this Court – that the trial court’s analysis and decision 

were manifestly unreasonable or that they overrode or misapplied the law. 

Nor does Diaz-Ayala argue that the trial court’s determinations were the result 

of bias, prejudice, or ill-will. Hence, his appellate argument does not persuade 

us that the trial court abused its discretion. 

Diaz-Ayala’s first issue entitles him to no relief.

2. Hearsay Statements of Conspirators

As his next issue, Diaz-Ayala contends the “trial court erred and abused 

its discretion in permitting hearsay testimony at trial over [his] objections.” 

Diaz-Ayala’s Brief at 22. He challenges two subcategories of hearsay: (1) the 

grand-jury testimony of Mitchell and (2) the statements that MontalvoFernandez made to Mr. Moody in the days following the murder.

Regarding Mitchell’s grand-jury testimony, Diaz-Ayala argues that the 

admission of that testimonial evidence violated the Sixth Amendment to the 

Constitution of the United States.2 The Commonwealth replies that Diaz-Ayala 

waived this sub-issue. See Commonwealth’s Brief at 19-20. We agree.

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2 The Sixth Amendment mandates that criminal defendants “shall enjoy the 

right . . . to be confronted with the witnesses against him . . . .”
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Waiver presents “a question of law, over which our standard of review 

is de novo, and our scope of review is plenary.” Commonwealth v. Barbour, 

189 A.3d 944, 954 (Pa. 2018).

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). Indeed, “issues, even those 

of constitutional dimension, are waived if not raised in the trial court. A new 

and different theory of relief may not be successfully advanced for the first 

time on appeal.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884 

(Pa. Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019).

When the Commonwealth began to ask one of its witnesses about the 

testimony that Mitchell provided before the grand jury, counsel for Diaz-Ayala 

requested a sidebar. There, his attorney did not object to the admission of 

Mitchell’s grand-jury testimony. Defense counsel said, “I’d ask the court to 

give a cautionary instruction that anything [Mitchell said] in front of the grand 

jury or in front of the [investigating] detective cannot be used in any way 

against my client.” N.T., 12/15/21, at 57. 

The trial court granted the requested relief. The court instructed the 

jury as follows: “you may hear statements made by Mr. Mitchell. Anything 

you hear regarding what Mr. Mitchell allegedly said cannot be used against 

Mr. Diaz-Ayala.” Id. at 58.

Thus, Diaz-Ayala made no objection to the admission of Mitchell’s grandjury testimony. In fact, he received the relief that he requested at sidebar. 

Simply put, Diaz-Ayala did not assert that Mitchell’s grand-jury testimony 
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violated his confrontation-clause rights at the trial. Hence, he raises this 

constitutional theory for the first time on appeal. Under Pa.R.A.P. 302(a), we 

dismiss Diaz-Ayala’s constitutional theory as waived.

Turning to his second sub-issue (i.e., Montalvo-Fernandez’s hearsay to 

Mr. Moody) Diaz-Ayala recognizes that our standard of review for evidentiary 

issues is an abuse of discretion. See Diaz-Ayala’s Brief at 2 (citing Montalvo, 

986 A.2d at 94). However, similar to his first appellate argument, he does 

not state which of the three types of abuse of discretion he believes the trial 

court committed. Instead, he argues that the trial court’s decision to admit 

Montalvo-Fernandez’s hearsay statements “was erroneous, because . . . that 

trial court failed to analyze whether [the statements] were made to further 

the common design of the conspiracy.” Id. at 27. 

First, this is inaccurate. The trial court performed the analysis that DiazAyala claims it did not. The court clearly stated that:

it can be readily inferred that there was an agreement, as 

part of the original plan, to get away with the crime, to cover 

up, to evade capture, and I think that can be readily inferred 

as part of the plan . . . The statements were made in 

furtherance of the conspiracy, and they are admissible.

N.T., 7/15/21, at 19 (emphasis added).

Second, as mentioned, an “abuse of discretion is not merely an error of 

judgment, but rather a misapplication of the law or an unreasonable 

exercise of judgment.” Johnson, 222 A.3d at 789 (emphasis added). DiazAyala does not claim that either occurred when the trial court granted the 
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Commonwealth’s motion in limine to admit Montalvo-Fernandez’s statements 

to Mr. Moody. Thus, he fails to persuade us that such an abuse occurred.

Diaz-Ayala’s second issue is partially waived and partially meritless.

3. The Jury Charge

Lastly, Diaz-Ayala asserts the trial court “erred and abused its discretion 

in giving a confusing progression charge to the jury which resulted in an 

inconsistent verdict.” Diaz-Ayala’s Brief at 29. He believes the charge on the 

progressive degrees of murder “confused the jury and led to inconsistent 

verdicts of guilty of [murder of the] second degree and not guilty of [murder 

of the] third degree.” Id.

The record reveals that Diaz-Ayala requested the progressive charge on 

murder. His counsel said to the trial court, “I am not asking for a progressive 

charge on anything other than the homicide.” N.T., 12/16/21, at 11

(emphasis added). Also, Diaz-Ayala did not object to the charge after it the 

trial court gave it. See id. at 231. 

As such, he did not preserve this issue for our review. Under Pa.R.A.P. 

302(a), we dismiss Diaz-Ayala’s final appellate issue as waived.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/4/2023