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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 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 Jonathan Rodriquez, [Appellant], and Marco Sanmarco. He went to 305 Indiana Avenue in Philadelphia to arrest Rodriquez. After breaching the door, he found Rodriguez hiding in a closet of the back bedroom on the second floor. He then went to 2937 Mutter Street to arrest [Appellant]. [Appellant] was found sleeping in the front bedroom on the second floor. [Appellant] looked different from his police photo. [Appellant's] hair had been straightened and dyed red. At first [Appellant] told Officer Fitzpatrick that his name was Jose but later admitted that he was Nelson Vazquez. Officer Fitzpatrick then went to 3928 Bennington Street to arrest Marco Sanmarco. Sanmarco was not at that location. Rodriquez and [Appellant] 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], Rodriquez and Sanmarco walk up 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" (Rodriquez), for a long time and that he knew "M[o]yo" ([Appellant]) 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 Rodriguez and [Appellant] 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 Rodriquez 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 [Appellant's] photo he wrote "Moyo" and "shooter." On Sanmarco's photo he wrote "Baze" and "went in Perry's (Smith's) pockets[,]" and on Rodriquez'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 Boobie start shooting at Perry. He saw Moyo ([Appellant]) shooting a gun 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 [Appellant]. 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 [Appellant] holding a silver revolver. He saw another male pull out a gun. He saw [Appellant] shoot the gun and then saw a male fall on the sidewalk. He saw [Appellant] 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 [Appellant] as one the males that had pulled out a gun 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 a 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 that the cause of death was multiple gunshot wounds to Smith's torso and that the manner of death was homicide. (N.T., id., pages 96, 101, 104–105).
Dr. Collins testified that Smith sustained two (2) penetrating gunshot wounds to his abdomen or torso and that two (2) projectiles were recovered from his body. Dr. Collins testified that Smith sustained one (1) entrance wound to the right upper abdomen and a second entrance wound lower down his torso just across from his belly button. Dr. Collins opined that the weapon that fired the shots was positioned from six (6) inches to within two and one-half (2 ½) feet away from Smith. (N.T., id., pages 106–107).
Dr. Collins testified that both of the wounds Smith suffered were fatal, but not instantly fatal. Dr. Collins testified that the toxicology report showed that Smith had PCP in his system at a level where he would be "high" at the time he was killed. The two (2) bullets recovered during the autopsy of Smith were turned over to the police department by the medical examiner's office. (N.T., id., pages 115–120, 225).
Detective John Cahill testified that he is assigned to the fugitive squad of the homicide unit. He was assigned to locate Sanmarco. On April 6, 2010, he along with U.S. Marshals went to 2222 N. 6th Street in Philadelphia where they found Sanmarco hiding in a closet of a second-floor back bedroom under a pile of clothes. Sanmarco told Detective Cahill that his name was "Sanjorgo" and that he had used the names "Marco Sanmarco" and "Marco Lopez." Sanmarco told him that he lived at 3927 Bennington Street. Sanmarco told him that his nicknames are "Baze" and "Skinny." Detective Cahill arrested Sanmarco. (N.T., id., pages 127–132).
Officer Raymond Andrejcak of the Firearms Identification Unit testified that he examined the evidence that was recovered in this case: one (1) Remington 9-millimeter luger fired cartridge casing was recovered from the scene and two (2) .38 caliber/9-millimeter bullets were recovered from Smith's body. Officer Andrejcak testified that the bullets were fired from the same firearm, either a .38 caliber or a 9-millimeter. However, he was unable to determine if the firearm that ejected the fired cartridge casing was the same gun that fired the two (2) bullets. (N.T., id., pages 227, 230–231, 239–243).

Trial Court Opinion, 10/11/12, at 2–9.

The trial court sentenced Appellant on December 2, 2011, to serve a term of life imprisonment without the possibility of parole for second-degree murder, concurrent terms of incarceration of ten to twenty years each for attempted murder, conspiracy and robbery, and concurrent terms of imprisonment of two and one-half to five years each for the firearms violation and PIC. No further penalty was imposed for aggravated assault. Appellant did not file post-sentence motions, and he filed his notice of appeal on December 23, 2011. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant raises one issue for our review: "Was the evidence insufficient to establish a reliable identification of Appellant as being involved in the commission of the crime he was convicted of committing?" Appellant's Brief at 2 (full capitalization omitted).

Appellant asserts that the evidence was insufficient to support his convictions because the Commonwealth's evidence "related to identification was inherently contradictory." Appellant's Brief at 8. He suggests the eyewitnesses' testimony was inconsistent and unreliable because "the incident occurred very fast." Id.

In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009). It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Diamond, A.3d, 2013 WL 6831851 (Pa. December 27, 2013). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Montalvo, 956 A.2d 932 (Pa. 2008); Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011). Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013). In addition, courts have noted that "evidence of identification need not be positive and certain to sustain a conviction." Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super. 2008) (citations omitted).

The trial court addressed the sufficiency of the identification evidence as follows:

The three (3) eyewitnesses to the shootings identified [Appellant] both in the photo array and in court as being at the scene of the shootings. They identified [Appellant] as holding and shooting a gun. Macklin identified [Appellant] as the male who pointed a gun at Lyons. Rivera identified [Appellant] as being one of the shooters. Lombardo identified [Appellant] as one of the males with a gun in his hand and as the male who fired a gun at Lyons.
Clearly the identification of [Appellant] by the eyewitnesses was sufficient evidence to establish that [Appellant] was involved in the commission of the crimes.

Trial Court Opinion, 10/11/12, at 10–11.

Appellant's reliance on Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), is misplaced. See Commonwealth Ramos, 827 A.2d 1195, 1198 n.7 (Pa. 2003) (Karkaria applicable only where Commonwealth's sole evidence is so unreliable and contradictory that it was incapable of supporting a guilty verdict). Appellant's contention in the instant case is akin to a claim that the evidence should not have been believed. We remind Appellant that the

[e]xistence of inconsistencies in the testimony of a witness does not alone render evidence insufficient to support a verdict. Commonwealth v. Long, 425 Pa. Super. 170, 624 A.2d 200, 208 (1993) (internal citation omitted). See also Commonwealth v. Pierce, 446 Pa. 479, 288 A.2d 807 (1972) (holding where inconsistencies of each witness's testimony were brought out in cross-examination and fairly presented to jury, mere conflict in testimony does not render evidence insufficient).

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). Any indefiniteness and uncertainty in identification testimony goes to its weight, not the sufficiency of the evidence. Commonwealth v. Orr, 38 A.3d 868 (Pa. Super. 2011).[1]

In his brief, Appellant asserts that Rivera's, Macklin's, and Lombardo's testimony was unbelievable. He assails Rivera's testimony because the witness allegedly inconsistently labeled the attackers as black, at times, and Hispanic at others. Appellant's Brief at 11. Appellant challenges Macklin's testimony as unbelievable due to proffered inconsistencies and her representation that she mistakenly had identified Co-Defendant Rodriguez as Emmanuel Rivera. Id. at 12. Finally, Appellant suggests that Robert Lombardo exaggerated the length of time of the incident, while also admitting that he had ingested heroin that morning. Id. at 13.

Ms. Macklin testified that she observed William Lyons exit a store with cigarettes, and Appellant and his two companions walked up to him. Id. at 17. Appellant asked for a cigarette whereupon he pulled a gun and pointed it at Mr. Lyons. Id. at 17–18, 61. When Appellant told his two co-defendants to "get my back," Sanmarco pulled a gun and pointed it at Mr. Lyons. Id. at 20, 55–56. Ms. Macklin heard two shots and saw Mr. Lyons fall to the ground. Id. at 20–21, 23. Mr. Lyons's companion, Perry Smith, attempted to run away, but Appellant and Sanmarco shot at him, striking him multiple times in the torso. Id. at 24–25. Ms. Macklin's explanations at trial, her prior statement to police, her 911 call to police, and her identifications of the men through photographs that were admitted at trial established the forgoing evidence.

In addition, eyewitness Emmanuel Rivera, who knew Appellant as "Moyo," saw Appellant shoot his gun in the direction of Lyons and Perry and later identified all three defendants as the men involved in the robbery, shooting, and murders. N.T., 10/17/11, at 56–72. Mr. Rivera identified Appellant at trial, as well. Id. at 59–60.

Further, contrary to Appellant's claim, Mr. Lombardo could not remember whether he ingested heroin the day after the incident before speaking to police. Upon cross-examination, when Mr. Lombardo was asked if he had heroin the day of the incident, he responded, "No." N.T., 10/18/11, at 172–173. Later, he admitted that he and Ms. Macklin bought heroin the day after the incident, but he could not recall if it was before or after they went to police headquarters. Id. at 189.

Ms. Macklin identified Appellant and his codefendants in photographic arrays, and the photographs and arrays were identified and presented at trial. N.T., 10/14/11, at 40–46, 50–54, 60–69. Finally, the Commonwealth played a videotape of the incident that witness Macklin testified accurately portrayed the events of the incident and the crimes. Id. at 191–194.

"Out-of-court identifications are relevant to our review of sufficiency of the evidence claims, particularly when they are given without hesitation shortly after the crime while memories were fresh." Orr, 38 A.3d at 874 (emphasis added). Here, there were multiple identifications as well as a videotape of the crime. As we reiterated in Lyons, "[The e]xistence of inconsistencies in the testimony of a witness does not alone render evidence insufficient to support a verdict." Lyons, 833 A.2d at 258. "It is within the province of the jury, as the finder of fact, to decide whether a witness'[s] testimony lacks credibility." Commonwealth v. Collins, 70 A.3d 1245, 1250 (Pa. Super. 2013) (quoting Commonwealth v. Fisher, 769 A.2d 1116, 1123 (2001)). "The jury, finding the testimony credible, could reasonably infer from the evidence presented that [the defendant] was one of the shooters." Collins, 70 A.3d at 1250.

Finally, Appellant's reliance on Commonwealth v. Wiley, 432 A.2d 220 (Pa. Super. 1981), is misplaced. In Wiley, a witness stated that he identified the defendant because "it looked like [the defendant.]" Id. at 221. When asked on cross-examination, "[H]ow positive are you in your identification?" the witness responded, "Not too sure." Id. He later stated that he was "50 percent" unsure in his identification. Id. at 222. On redirect, the witness changed his certainty regarding the identification to "somewhere about 70 percent." Id. at 223. No such equivocation exists in the instant case. Further, in Wiley there was a dearth of any evidence, "circumstantial or other," corroborating the witness's identification of the defendant. In this case, there were multiple eyewitness identifications and a videotape depicting the scene. Thus, we conclude that the Commonwealth provided sufficient identification evidence, and Appellant's claim to the contrary is meritless.

Judgment of sentence affirmed.

Judgment Entered.

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