Com. v. Velasquez, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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