Com. v. Velasquez, F.

• Court: Superior Court of Pennsylvania
• Decided: December 22, 2017
• Docket: 236 WDA 2017
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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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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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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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“[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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