Com. v. Velasquez, F. ( 2017 )


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  • J-S63025-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA        IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    FELIX VELASQUEZ
    Appellant                       No. 236 WDA 2017
    Appeal from the Judgment of Sentence Dated December 21, 2016
    In the Court of Common Pleas of Erie County
    Criminal Division at No(s): CP-25-CR-0000987-2016
    BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY SOLANO, J.:                             FILED DECEMBER 22, 2017
    Appellant Felix Velasquez appeals from the judgment of sentence
    imposed following a jury trial at which he was found guilty of aggravated
    assault, criminal attempt – criminal homicide, recklessly endangering
    another person, carrying a firearm without a license, possessing an
    instrument of crime with intent to employ it criminally, robbery – threat of
    immediate serious injury, and terroristic threats with intent to terrorize
    another.1 In this appeal, he contests whether the evidence was sufficient to
    convict him. We affirm.
    On   January     18,   2016,     Nassir   Al-Zamly   purchased   drugs   from
    Appellant. N.T., 11/7/16, at 26-29, 31, 41, 56. The transaction had been
    arranged by a woman Al-Zamly knew as “Terran,” who was later identified
    ____________________________________________
    1  18 Pa.C.S. §§ 2702(a)(1), 901(a),                 2705,    6106(a)(1),   907(a),
    3701(a)(1)(ii), and 2706(a)(1), respectively.
    J-S63025-17
    as Terran Meserve. Al-Zamly had requested that the transaction take place
    outside his home on West 27th Street in Erie. Al-Zamly was an Oxycontin
    addict and agreed to purchase that drug from Appellant for $15 per pill.
    Meserve arrived at Al-Zamly’s residence with Appellant, and Al-Zamly
    purchased ten pills. Al-Zamly and Appellant had never met before that drug
    transaction.
    The next day, Al-Zamly was sitting in the driver’s seat of his Chevrolet
    Malibu, which was parked outside his house, when Appellant appeared,
    opened the front passenger door of Al-Zamly’s automobile, sat in the front
    passenger seat, demanded money from Al-Zamly, and shot him multiple
    times.    N.T., 11/7/16, at 31-38, 46-50, 64.     After being shot, Al-Zamly
    crawled out of his automobile, and Appellant exited the car, fired at Al-
    Zamly again, then fled to a burgundy Chevrolet Impala, and drove away.
    Al-Zamly suffered life-threatening wounds.       Police never recovered the
    firearm. Trial Ct. Op., 3/13/17, at 1.
    The shooting was witnessed by Justin Grzegorzewski, a letter carrier
    for the United States Postal Service, who was delivering mail in the
    neighborhood, but Grzegorzewski did not see the shooter’s face.           N.T.,
    11/8/16, at 9, 13.2
    Al-Zamly was unable to identify Appellant from a photo lineup
    provided by the Erie Police Department, Trial Ct. Op., 3/13/17, at 1, but told
    ____________________________________________
    2 On January 19, 2016, Grzegorzewski was “cover[ing]” another letter
    carrier’s route on what was originally intended to be “one of [his] days off.”
    N.T., 11/8/16, at 10.
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    J-S63025-17
    investigators that the man who had shot him was the same individual who
    had sold him drugs outside his home on the previous day. N.T., 11/7/16, at
    51, 54; N.T., 11/8/16, at 83. He also informed police that the shooter had
    been driving a burgundy Chevrolet with a dent in the front bumper. N.T.,
    11/7/16, at 65-67.     Al-Zamly gave Meserve’s contact information to the
    police, and Meserve was able to identify Appellant in a photographic array.
    Commonwealth Ex. 4; N.T., 11/8/16, at 84.
    Appellant’s jury trial occurred on November 7 and 8, 2017. Appellant
    did not contest that the shooting occurred or that Al-Zamly was severely
    injured in the shooting, but he claimed that he was not the perpetrator. See
    Appellant’s Brief at 17.
    During the trial, Al-Zamly identified Appellant as the person who
    demanded his money and shot him.       N.T., 11/7/16, at 54; Trial Ct. Op.,
    3/13/17, at 1.   During his trial testimony, Al-Zamly acknowledged that he
    was addicted to Oxycontin, had purchased that drug illegally from Appellant,
    and had been unable to identify Appellant from a photographic array shortly
    after the shooting. N.T., 11/7/16, at 27-29, 54, 56. He also admitted that at
    the preliminary hearing, he had identified Appellant’s car as a Chevrolet
    Malibu instead of a Chevrolet Impala. 
    Id. at 66.
    Al-Zamly’s cellular telephone activity was admitted into evidence as
    Commonwealth Exs. 3A-3C; N.T., 11/8/16, at 7. Al-Zamly’s cell phone had
    repeatedly sent calls and texts to a phone number registered to Appellant’s
    mother.
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    Video footage of the shooting from a nearby store was admitted as
    Commonwealth Exhibit 2. N.T., 11/7/16, at 42; N.T., 11/8/16, at 72. 3 The
    video showed Appellant’s vehicle parked on 27th Street on January 19,
    2016. N.T., 11/7/16, at 43. The vehicle was a burgundy Chevrolet sedan
    with a silver hubcap on the front passenger-side wheel, no hubcap on the
    back passenger-side wheel, and a dent in the bumper. 
    Id. at 44.4
    In the
    video, a man, whom Al-Zamly identified as Appellant while watching the
    video during his trial testimony,5 is seen exiting the vehicle and walking off
    screen. 
    Id. Minutes later,
    Appellant reappears on screen holding a firearm,
    stands next to his automobile, and shoots.       
    Id. at 46.
      Then, the footage
    shows Appellant entering his car and departing. 
    Id. at 45.
    Al-Zamly does
    not appear in the footage.
    Grzegorzewski testified during the trial, but stated that he did not see
    the perpetrator’s face and so could not identify Appellant. Trial Ct. Op.,
    3/13/17, at 1; N.T., 11/8/16, at 13.
    Meserve testified that she brokered a drug deal between Appellant and
    Al-Zamly on January 18, 2016, and that she was responsible for introducing
    ____________________________________________
    3The store was located at 2630 State Street in Erie. N.T., 11/7/16, at 72.
    There is nothing in the record indicating the distance between this address
    and Al-Zamly’s home.
    4 About a month after the shooting, a burgundy Chevrolet Impala matching
    this description was located at the residence of Appellant’s mother. N.T.,
    11/8/16, at 115.
    5 The video is not in the certified record. Appellant does not contest what
    can be seen on the video.
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    J-S63025-17
    them. See generally N.T., 11/8/16, at 29-61. She identified Appellant in
    open court as the man who she brought to Al-Zamly’s residence to sell drugs
    to Al-Zamly.     
    Id. at 40.
        Meserve also testified that when she first spoke
    with police, she did not admit that she was at Al-Zamly’s home in order to
    engage in a drug transaction. 
    Id. After she
    “was in rehab” for her own drug
    addiction, she went to the police, “gave them the real reason [she] was
    there,” “[t]old them that [she] facilitated the deal[,] and told them that
    [she] wanted to make any corrections to any documents or whatever that
    [she] may have signed.” 
    Id. at 40-41;
    see also 
    id. at 30.
    Detective Craig Stoker of the Erie Police Department, who was
    assigned to this case, N.T., 11/8/16, at 62, testified that he interviewed two
    “actual   witnesses     to   the   events,”    Justin   Grzegorzewski   and   Lskaafi
    Mohammed.       
    Id. at 71.6
        Detective Stoker admitted that neither Al-Zamly
    nor Mohammed could identify the shooter from a photographic array. 
    Id. at 71,
    111-12.7 Mohammed did not testify at trial. Trial Ct. Op., 3/13/17, at
    1. In addition, Detective Stoker testified that he did not recover a firearm
    ____________________________________________
    6 In the notes of testimony, the second witness’s name is phonetically
    spelled as “Muhammad El-Kashee.” N.T., 11/8/16, at 71. During trial, the
    Commonwealth asked Detective Stoker if Mohammed “was an eyewitness to
    this incident.” 
    Id. at 111.
    Appellant’s counsel objected before Detective
    Stoker answered. Although the trial court overruled the objection, the
    Commonwealth never returned to this question and instead asked if
    Mohammed “did a photo lineup.” 
    Id. 7Al-Zamly, Meserve,
    and Mohammed were all shown the same photographic
    array. Commonwealth Ex. 4; N.T., 11/8/16, at 112. When asked if
    Mohammed was “able to pick out [Appellant] in that photo lineup,” Detective
    Stoker answered, “Not with a hundred percent certainty, no, he did not.”
    N.T., 11/8/16, at 112.
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    and did not obtain a warrant in order to search Appellant’s mother’s home
    where the burgundy Chevrolet Impala had been located. N.T., 11/8/16, at
    115.
    During closing arguments, defense counsel argued that there were
    discrepancies and inconsistencies in the evidence, focusing on Al-Zamly’s
    failure to identify Appellant in the photographic array.         Trial Ct. Op.,
    3/13/17, at 1.
    Appellant was convicted on November 8, 2016, and sentenced on
    December 21, 2016, to 15-30 years’ confinement.            After the trial court
    denied his post-sentence motion on January 4, 2017, Appellant filed this
    timely appeal on February 3, 2017. On appeal, Appellant presents a single
    issue for our review:
    Did the Commonwealth present sufficient evidence of Appellant’s
    identity as the perpetrator of the crime to sustain the
    convictions?
    Appellant’s Brief at 7.
    “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.”
    Commonwealth v. Golphin, 
    161 A.3d 1009
    , 1018 (Pa. Super.), appeal
    denied, 
    170 A.3d 1051
    (Pa. 2017).        In implementing this test, this Court
    may not weigh the evidence and substitute its judgment for that of the fact-
    finder. Commonwealth v. Rahman, 
    75 A.3d 497
    , 501 (Pa. Super. 2013).
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    J-S63025-17
    “[W]e     note    that   the    facts   and     circumstances    established    by    the
    Commonwealth         need      not   preclude    every    possibility   of   innocence.”
    Commonwealth v. DiStefano, 
    782 A.2d 574
    , 582 (Pa. Super. 2001). 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.
    Commonwealth v. Lehman, 
    820 A.2d 766
    , 772 (Pa. Super. 2003). “The
    Commonwealth may sustain its burden of proof or 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.”                     
    Id. “Finally, the
    trier of fact 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. Schoff, 
    911 A.2d 147
    , 159 (Pa. Super.
    2006).
    Appellant argues, generally:
    At trial, the defense conceded that someone inflicted the gunshot
    wounds that resulted in Al-Zamly’s hospitalization, however, it
    maintained that the evidence did not establish beyond a
    reasonable doubt that Appellant was the perpetrator.
    Specifically, Appellant points to Al-Zamly’s inability to identify
    Appellant in a photo array during the police investigation.
    Moreover, two other eyewitnesses could not identify him, and
    the police never recovered the firearm.
    Appellant’s      Brief   at    17.      Those    “two    other   eyewitnesses”       were
    Grzegorzewski, who “did not see the shooter’s face,” and Mohammed, who
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    J-S63025-17
    “did not identify Appellant as the shooter.”        
    Id. at 21.
       Appellant only
    challenges his identification and does not allege that the Commonwealth
    presented insufficient evidence to satisfy the elements of any one particular
    crime. See Appellant’s Brief at 17-21.
    In its memorandum opinion, the trial court stated:
    Appellant avers the guilty verdicts go against the sufficiency of
    the evidence because the victim, Nassir Al-Zamly, was unable to
    identify Appellant out of a photo lineup provided by the Erie
    Police Department; a witness, Justin Grzegorzewski, could not
    identify Appellant during trial; and because a firearm was not
    recovered. . . .
    When viewed in a light most favorable to the Commonwealth as
    verdict winter, the evidence at trial was clearly sufficient to
    support the guilty verdicts in this case. . . . The issue of
    credibility as to identification was one for the jury to decide. . . .
    [I]t was for the jury to decide who to believe. As the trial
    transcript bears out, there was sufficient evidence, if believed,
    upon which a verdict of guilty could legally rest.
    Trial Ct. Op., 3/13/17, at 1.
    Viewing all of the evidence admitted at trial in a light most favorable to
    the Commonwealth as verdict winner, 
    Golphin, 161 A.3d at 1018
    , we
    observe that during his trial testimony, Al-Zamly provided a detailed
    chronology of events and identified Appellant as the man who shot him.
    N.T., 11/7/16, at 27-29, 31-38, 46-47, 49-51, 54, 56, 64-67.           Al-Zamly’s
    testimony was corroborated by his cell phone records and by camera
    footage. Commonwealth Exs. 2 & 3A-3C. Meserve also confirmed that she
    had arranged for Al-Zamly and Appellant to meet for a drug transaction, and
    she identified Appellant from a photographic array and in open court as the
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    individual who sold drugs to Al-Zamly in her presence. Commonwealth Ex.
    4; N.T., 11/8/16, at 40, 84-85; see also 
    id. at 29-61.
    We may not re-weigh the evidence or substitute our judgment for that
    of the jury. 
    Rahman, 75 A.3d at 501
    . The jury weighed the fact that Al-
    Zamly was a drug addict and had engaged in an illegal drug transaction,
    which he admitted both to police during their initial investigation and during
    his trial testimony. N.T., 11/7/16, at 27-29, 51, 54, 56. The jury was also
    aware that, after the shooting, Al-Zamly had been unable to identify
    Appellant from a photographic array provided by the Erie Police Department,
    
    id. at 51,
    54; Trial Ct. Op., 3/13/17, at 1, and misidentified Appellant’s
    automobile as a Chevrolet Malibu instead of a Chevrolet Impala during the
    preliminary hearing, N.T., 11/7/16, at 66. Despite the conflicting evidence,
    the jury still chose to find Al-Zamly’s in-court identification credible.   Cf.
    
    Schoff, 911 A.2d at 159
    . Al-Zamly was able to tell police that his shooter
    was the same man who had sold drugs to him on the day before the
    shooting, and he identified Appellant in court. N.T., 11/7/16, at 51, 54; Trial
    Ct. Op., 3/13/17, at 1.     Al-Zamly also testified that Appellant drove a
    distinctive vehicle, which was ultimately located at the home of Appellant’s
    mother. N.T., 11/7/16, at 35-38, 44, 46-47, 65-67; N.T., 11/8/16, at 115.
    And even though police never recovered a firearm, Trial Ct. Op., 3/13/17, at
    1, Al-Zamly testified that he saw Appellant holding a firearm, and the
    admitted camera footage showed Appellant holding and shooting a firearm.
    N.T., 11/7/16, at 31-35, 46, 49-50, 63-64; Commonwealth Ex. 2.
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    After a careful review of the evidence, we agree with the trial court
    that Appellant has not demonstrated entitlement to relief and thus affirm the
    judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/22/2017
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Document Info

Docket Number: 236 WDA 2017

Filed Date: 12/22/2017

Precedential Status: Precedential

Modified Date: 12/22/2017