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[U] Commonwealth v. Rodriguez

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JONATHAN RODRIGUEZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered December 2, 2011, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0009673-2010.

BEFORE: SHOGAN, OTT and PLATT [*] , JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Jonathan Rodriguez, appeals from the judgment of sentence entered on December 2, 2011, following his conviction by a jury on October 27, 2011, of second-degree murder, conspiracy to commit robbery, robbery, and aggravated assault. We affirm.

The trial court summarized the facts of the crime as follows:

Police Officer Kober testified that on [March] 26, 2010, at approximately 12:50 A.M., he went to "B" and Stella Streets in Philadelphia in response to a report of shots fired. When he arrived at the scene, he observed a male, later identified as fifteen (15) year old William Lyons, lying on the sidewalk at the bottom of the steps of a Chinese store at 3037 "B" Street. He saw that the male had been shot in the right side of his head. (Notes of Testimony, October 13, 2011, pages 58–67, 96).
Police Officer Ramos testified that at approximately 12:50 A.M. on [March] 26, 2010, he was responding to a police radio call of shots fired. As he crossed the intersection of "B" Street and Elkhart Streets, he observed a black male, later identified as Perry Smith, lying on the sidewalk at the southwest corner of the intersection. Officer Ramos exited his patrol car and saw that the male had a gunshot wound to the chest. Officer Ramos and Police Officer Ginion placed Smith in their patrol car and took him to Temple Hospital. (N.T., id., pages 102-107). Lyons survived. Smith died.
While at the scene, Officer Ramos was approached by Emmanuel Rivera. Rivera inquired as to Lyons' condition. Rivera told Officer Ramos that "they shot at us." Rivera described one (1) of the males involved as light skinned black male, approximately six (6) feet tall, wearing a black hat and black shirt. He described two (2) other males as being Hispanic, one of which had his hair in braids. He told Officer Ramos that the males ran westbound on Elkhart Street. Officer Ramos put out flash information to find the three (3) males. Officer Ramos turned Rivera over to Officer Kober. Rivera told Officer Kober that he had been with Lyons. Officer Kober had Rivera transported to East Detectives. (N.T., id., pages 6869, 107- 109, 111-112).
Meghan Macklin testified that on March 26, 2010 at approximately 12:50 A.M., she was driving in the area of "B" and Stella Streets with her boyfriend Robert Lombardo, looking to buy drugs. She saw four (4) to five (5) males standing in front of a Chinese store. One of the males yelled out that he had drugs to buy. She pulled her vehicle over on the west side of "B" Street across from the Chinese store and got out of her vehicle. She walked up to the Chinese store and told one of the males, who appeared to be fourteen (14) or fifteen (15) years old, (later identified as Emmanuel Rivera), that she wanted to buy seven (7) bags of heroin. Rivera ran across the street. She did not see exactly where he went.
As she was waiting for Rivera to return, she saw two (2) males inside the Chinese store, (later identified as William Lyons and Perry Smith). Lyons came out of the store with a pack of cigarettes. One of the males standing in front of the store asked him for a cigarette. As Lyons was taking a cigarette out of the pack, the male who had asked him for a cigarette, pulled out a black handgun, held it up to Lyons' neck and attempted to take the whole pack of cigarettes from Lyons. Ms. Macklin heard the male call out to "B" or "D" to "watch his back." Another male that was standing in front of the store, pulled out a black handgun. She heard at least two (2) gun shots. She saw that Lyons was bleeding from his head and saw him collapse in front of the Chinese store. Smith ran up "B" Street toward Allegheny Avenue. She heard more shots fired and saw Smith run ten (10) to fifteen (15) feet and then collapse and start to convulse. She then saw the two (2) males who were shooting and a third male wearing a white shirt, run in the opposite direction that Smith ran, down "B" Street. Ms. Macklin ran back to her vehicle, got into the passenger side and drove away. After she left the scene, Mr. Lombardo called for an ambulance. (Notes of Testimony, October 14, 2011, pages 3–28, 37).
Approximately ten (10) hours later, Macklin contacted the police. She told the police that she had seen a shooting in the area of "B" Street and Allegheny Avenue. Macklin and Lombardo were taken to police headquarters and gave statements regarding the incident. Macklin was asked to look at photographs. She identified the photo of Lyons as the male that had the pack of cigarettes in his hand. She identified the photo of Emmanuel Rivera as the young male who ran across the street to get the heroin. She identified a photo of Smith as the male she saw collapse and convulse. (N.T., id., pages 37-46).
The next day at approximately 12:10 P.M., Macklin was again interviewed by police regarding the incident. After viewing photo arrays, she identified all three (3) Defendants. She identified a photo of co-defendant Nelson Vazquez, as the male she saw approach Lyons with a gun. She identified a photo of co-defendant Marco Sanmarco as the male that had been standing next to her and who had pulled out the second gun and had fired shots at Lyons and Smith. She identified [Appellant] as the third male she saw running away with Vazquez and Sanmarco. She testified that [Appellant], Vazquez and Sanmarco were the males standing together in front of the Chinese store when she pulled up in her vehicle and that they had been together the whole time she was present on the scene. (N.T., id., pages 47–66).
The Commonwealth played a video tape of the incident. Macklin testified that the incident as portrayed in a video tape was an accurate depiction of what occurred on the night of the incident. (N.T., id., pages 191–194).
Officer Thomas Fitzpatrick testified that on March 30, 2010, he was assigned to serve arrest warrants for [Appellant], Nelson Vazquez and Marco Sanmarco. He went to 305 Indiana Avenue in Philadelphia to arrest [Appellant]. After breaching the door, he found [Appellant] hiding in a closet of the back bedroom on the second floor. He then went to 2937 Mutter Street to arrest Nelson Vazquez. Vazquez was found sleeping in the front bedroom on the second floor. Officer Fitzpatrick then went to 3928 Bennington Street to arrest Marco Sanmarco. Sanmarco was not at that location. [Appellant] and Vazquez were arrested and taken to the Homicide Unit. (Notes of Testimony, October 17, 2011, pages 4, 6, 10–19).
Emmanuel Rivera testified that he was thirteen (13) years of age on the date of the incident. He testified that he was standing outside the Chinese store with Lyons and Smith. He saw [Appellant], Vazquez and Sanmarco walk up together and go into the Chinese store. He testified that he was "hustling" (selling drugs) with Lyons. He had just met Smith that same night. He testified that he knew "Baze" (Sanmarco) and "Boobie" ([Appellant]), for a long time and that he knew "Moyo" (Vazquez) for four (4) months. (N.T., id, pages 61–62).
Rivera further testified that, a woman came up to him and asked for six (6) bags of "dope" (heroin). He went across the street to an alleyway where he kept the heroin. When he was coming back towards the Chinese store, he saw Sanmarco patting Smith's pockets and Smith fighting with Sanmarco. He saw that [Appellant] and Vazquez both had guns in their hands. He did not see Sanmarco with a gun. He heard two (2) gunshots that he believed came from the gun that [Appellant] was holding. He ran up Stella Street and hid behind a truck. After a few minutes, he ran back down Stella Street to check on Lyons. When he got to the corner of "B" and Stella Streets, he saw that the police had arrived on the scene. He asked a policeman on the scene if Lyons was still there. The policeman took Rivera to the police district. (N.T., id., pages 62–75).
Rivera was interviewed by Detective Aitkin. Rivera testified that he lied at first, when he told the detective that he did not know who was present at the time of the shooting, because he was scared. (N.T., id., page 76).
When interviewed at the Homicide Division, Rivera identified all three (3) defendants from photos. On the [sic] Vazquez's photo he wrote "Moyo" and "shooter." On Sanmarco's photo, he wrote "Baze" and "went in Perry's (Smith's) pockets" and on [Appellant's] photo he wrote "Boobie" and "shooter." Rivera told the detectives that he was standing outside the "chino" store on B Street with Lyons and Smith. Boobie, Baze, and Moyo came up to them and asked if the store sold cigarettes. They went into the store. At that point, a woman approached them and asked for six (6) bags of "dope." He ran across the street into an alleyway to get the dope. When he came out of the alleyway, he saw Baze taking a pack of cigarettes from Perry. He saw Baze hitting Perry and "checking his pockets." He saw [Appellant] shooting at Perry. He saw Moyo shooting in the direction of Lyons and Perry. Rivera was then shown a video wherein he identified himself, the woman who approached him to buy drugs and Lyons. (N.T., id., pages 77–92, 229-232).
Robert Lombardo testified that on March 26, 2010, he drove with Meg[h]an Macklin, his ex-girlfriend, to "B" and Stella Streets in Macklin's mother's SUV to buy drugs. Macklin parked the SUV across the street from a Chinese store. He could see five (5) males standing outside the Chinese store. He identified one of the males as Vazquez. He saw Macklin walk across the street and start talking to the males. He saw one of the males he described as being "young," run across the street and into an alley. He saw one of the other males go into and then exit the Chinese store. He then saw Vazquez holding a silver revolver. He saw another male pull out a gun. He saw Vazquez shoot the gun and then saw a male fall on the sidewalk. He saw Vazquez fire the gun again. He saw Macklin run back across the street. He then saw the two (2) males who had fired guns and another male running away. (N.T., id. pages 138–147).
Macklin returned to the SUV, and jumped into the passenger's seat. Lombardo drove the SUV away from the scene and reported the shooting to the police. Later that morning, Lombardo called the police again. Lombardo and Macklin were taken to police headquarters to be interviewed. (N.T., id., pages 149–151, 153).
Lombardo was interviewed by homicide detectives a second time on March 27, 2010, at approximately 12:05 P.M. At this interview, he was shown photographs and asked if he recognized anyone in the photos. He identified Vazquez as one [of] the males that had pulled out and had fired the gun. (N.T., id., pages 161–163).
Police Officer Brian Stark, assigned to the crime scene unit testified that he was called to the scene by the homicide unit. He recovered a 9-millimeter fired cartridge casing from the step of 3035 "B" Street which was next door to the Chinese store. He observed [a] blood-like substance appearing on the sidewalk from the front steps of the Chinese store to the curb line. (Notes of Testimony, October 18, 2011, pages 38–43, 51–53).
Dr. Gary Lincoln Collins testified that he is the acting Deputy Chief Medical Examiner for the Philadelphia Medical Examiner's Office. He reviewed the autopsy report and photos of the autopsy performed on Smith, a toxicology report and examined the clothing Smith was wearing. He testified that the autopsy was done by Assistant Medical Examiner, Dr. Chase Blanchard[,] who is on extended family medical leave due to injuries she received as the result of a car accident. Dr. Collins testified that he was able to render an independent expert opinion as to the cause and manner of death of Smith. Dr. Collins opined ...

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