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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MARK SMITH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered July 12, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0000500-2011

BEFORE: ALLEN, STABILE, and STRASSBURGER, [*]JJ.

MEMORANDUM

ALLEN, J.

Mark Smith ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of two counts of robbery, aggravated assault, and possessing an instrument of crime.[1] We affirm.

The trial court summarized the relevant facts as follows:

On October 17, 2010, Rashell Williams was sitting on the stoop at the home of her friend Christopher Collazo-Nichols and waiting for him to return from the store. As she was waiting, Williams was approached by [Appellant], who rode up to the house on a bicycle and started a conversation with Williams. Moments later, Collazo-Nichols returned to the house and told [Appellant] to leave. Collazo-Nichols argued with [Appellant] and shook [Appellant's] bike in an effort to get [Appellant] to leave. Before [Appellant] rode off, he said "I'll be back, ya'll don't know who you're messing with." After [Appellant] left, Williams and Collazo-Nichols went into the house.
A short time later, [Appellant] knocked at the door and confronted Collazo-Nichols. After a brief exchange of words, [Appellant] left the house. Shortly thereafter, [Appellant] returned to the house. Collazo-Nichols went to the door and for the third time, told [Appellant] to leave. [Appellant] said "You don't know O.G., I run these streets, " and then left the house.
Ten minutes later, Williams was in the middle bedroom when Williams heard the middle bedroom door creak open. [Appellant] had apparently entered the house through an open window on the first floor. Williams attempted to close the bedroom door. She testified that she looked up and she saw [Appellant] enter the room pointing a gun at her. [Appellant] closed the door and told Williams to be quiet and that he was going to rob Collazo-Nichols. [Appellant] then went into the front bedroom where Collazo-Nichols was sleeping.
Collazo-Nichols awoke to find [Appellant] in his room going through his belongings. [Appellant] collected Collazo-Nichols's valuables including watches, clothes, car keys, and cash. [Appellant] then went back into the middle bedroom and ordered Williams into the front bedroom with Collazo-Nichols. [Appellant] took Williams' cell-phone and removed money from her wallet. While pointing his gun at Collazo-Nichols, [Appellant] instructed him to remove televisions from the bedroom and the first floor and to load them into Collazo-Nichols's car. [Appellant] followed Collazo-Nichols to the vehicle pointing his gun at him.
[Appellant] ordered Collazo-Nichols back into the house and up the stairs to the back bedroom. Collazo-Nichols told [Appellant] that he kept nothing of value in the back bedroom. At this point, [Appellant] had his gun pointed to the back of Collazo-Nichols' head. At this time, Collazo-Nichols believed that [Appellant] was taking him to the back bedroom to kill him. When Collazo-Nichols was standing at the top of the stairs and [Appellant] was just below him, Collazo-Nichols turned to grab the gun from [Appellant]. A brief struggle ensued, which caused [Appellant] to fall down the stairs. As [Appellant] fell, he shot Collazo-Nichols in the left shoulder. In an effort to escape, Collazo-Nichols ran into the front bedroom and jumped out of the window. [Appellant] left the house through the front door and chased Collazo-Nichols down the street while firing his gun at Collazo-Nichols. Collazo-Nichols entered a bar on Germantown Avenue and called 911. Collazo-Nichols suffered a gunshot wound to the shoulder, as well as a broken foot and shattered heel and wrist.
During separate police interviews on the night of the shooting, Williams and Collazo-Nicholas provided identical descriptions of [Appellant] to the police. In their interviews Collazo-Nichols and Williams described distinctive tattoos including a tear drop under the left eye and a marijuana leaf on the neck. Based on these distinctive tattoos, the physical description and age of the alleged perpetrator, and the location of the shooting, Philadelphia Police Detective Knoll searched a police database and found that [Appellant] and another individual matched the descriptions provided.
Philadelphia Police Detective Urban conducted a lineup at which Collazo-Nichols, immediately and without hesitation, identified [Appellant] as the person who robbed and shot him. Detective Urban testified that each of the subjects in the lineup, including [Appellant], had their tattoos covered so as to avoid any suggestiveness. Detective Knoll testified that he presented Williams with a photo array in which the tattoos of each of the subjects were blacked out. Detective Knoll testified that Williams immediately identified [Appellant] as the person who robbed her upon being shown the photo array.
Detective Knoll also investigated the crime scene at Collazo-Nichols' home. Detective Knoll took photos of the bullet hole in the ceiling of the back bedroom. Detective Knoll testified that, based on his investigation and the photo presented at trial, the location of the bullet mark in the ceiling was consistent with the testimony of Collazo-Nichols and Williams regarding where in the house Collazo-Nichols was shot by [Appellant].

Trial Court Opinion, 9/16/13, at 1-3 (citations to notes of testimony omitted).

Appellant was arrested and the Commonwealth filed a criminal information charging Appellant with twenty-nine crimes, several of which were subsequently nolle prossed. Following a jury trial on March 22, 2011, Appellant was convicted of robbery, aggravated assault and possessing an instrument of crime. The jury found Appellant not guilty of attempted murder, burglary, ...


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