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[U] Commonwealth v. Vazquez

Superior Court of Pennsylvania

February 21, 2014



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-0009675-2010.




Appellant, Nelson Vazquez, 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, attempted murder, conspiracy to commit robbery, robbery, aggravated assault, carrying a firearm on a public street or property in Philadelphia, and possession of an instrument of crime ("PIC"). We affirm.

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

Police Officer Kober testified that on [March] 26, 201[0], 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, 201[0], 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 [a] 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 holding the gun call out to "B" or "D" to "watch his back." She then saw one of the other males that were standing in front of the store, pull out a black handgun. She heard at least two (2) gun shots. She saw Lyons bleeding from his head. She then saw him collapse in front of the Chinese store. She saw Smith running up "B" Street toward Allegheny Avenue. She heard more shots being fired. She 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. 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 [Appellant] 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, who had pulled out the second gun and had fired shots at Lyons and Smith. She identified Co-Defendant Jonathan Rodriguez as the third male she saw running away with [Appellant] and Sanmarco. She testified that Rodriguez, [Appellant], 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 [the] video tape was an accurate depiction of what occurred on the night of ...

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