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[U] Commonwealth v. Nieves

Superior Court of Pennsylvania

March 11, 2014

JOSE NIEVES, Appellant


Appeal from the Judgment of Sentence Entered September 7, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007388-2011




Jose Nieves (Appellant) appeals from the judgment of sentence imposed following his conviction by a jury of attempted murder, aggravated assault, and possessing an instrument of crime. Appellant asserts that the verdict was contrary to the weight of the evidence and presents a prosecutorial misconduct claim. After review, we affirm.

The trial court set forth the following recitation of facts in its opinion filed pursuant to Pa.R.A.P. 1925(a):

On the night of May 13, 2011, the Complainant [William Meyo] stood in an empty lot at 1924 E. Firth Street leaning against Appellant's house. The Complainant saw José Nieves (Appellant) exit the house, walk over to a red Acura Integra, and unlock the door. The Appellant appeared to be having a disagreement with his girlfriend, so the Complainant began to walk across the empty lot away from the house. The Complainant had never seen the Appellant before, nor was he acquainted with him in any way. As the Complainant walked away, the Appellant came up behind him without warning and pushed him down onto the ground on a white door[, which was lying on the ground]. The Appellant then went back into the house, and the Complainant remained laying on the door, unable to get up [due to paralysis of his left arm from a previous incident]. The Appellant returned with a silver pistol in his hand, and one of the girls who had exited the house with the Appellant screamed, "Don't hit him with a hammer, don't shoot him." Appellant then shouted obscenities at the Complainant and shot him twice in the back of the head, rendering him unconscious.
A short time later, the Complainant woke up, stood up, and walked away. While he was walking, he felt a wetness on his neck and thought it was raining until a woman told him it wasn't raining at all, but that he had "holes in the back of [his] head." A bystander called for an ambulance. When the ambulance arrived, emergency personnel took the Complainant first to Episcopal Hospital, then to Temple Hospital. The Complainant told a police officer in the ambulance what had happened to him. In Temple Hospital's Emergency Room, the Complainant also spoke with two other officers, including Officer Michael Hand. The Complainant gave Officer Hand information about the location of the incident and the Appellant.
Officer Hand relayed Complainant's information to officers working in the twenty-sixth police district, including Officer Joseph McFillin. Based on Complainant's information, Officer Hand told 26th District officers that the Appellant came out of a house next to an empty lot and attacked him. Hand said the crime scene was an empty lot with a wooden board in the rear and there was a red Acura Integra coupe parked on the street in front of the lot. Finally, Hand said the Complainant described his attacker as a Hispanic male, approximately five foot four, weighing approximately one hundred and twenty pounds, with long hair, blue jeans, and tattoos.
Meanwhile, Officer McFillin responded to a radio call concerning a male who was lying in the street bleeding from the head. When Officer McFillin arrived, however, medics had already transported the Complainant from the scene. Approximately fifteen to twenty minutes later, Officer McFillin received a radio call that a male with a gunshot wound to the head had been taken to Temple Hospital from Emerald and Cumberland streets. He was familiar with the area of the crime from the previous radio call. Officer McFillin then immediately returned to the area and began to search for the crime scene. After receiving information from Officer Hand, Officer McFillin and other officers found the crime site. The red Acura Integra was still parked by the lot, and a white door with blood on it was also in the lot.
Officer Joseph Goodwin later went to the scene. After arriving, he observed the blood stained door and found a bullet fragment. Officer Goodwin also learned that the suspect was a Hispanic male with tattoos, long hair, and possibly the driver of a red Acura. Goodwin knew this person as "Flacko." "Flacko" lived in the house next to the empty lot. Goodwin learned that "Flacko's["] first name was José. Goodwin later went to a house next to the empty lot where he spoke to two women. One woman gave him a photograph of the Appellant. Officer Goodwin, in turn, gave the photograph to Officers Cross and Wingrove, who surveyed the area for the Appellant. While surveying, the officers were told by a bystander that the Appellant was at his mother's house. When the officers went to the house, they found the Appellant and took him into custody.
The officers subsequently took the Appellant to Temple Hospital. At the hospital, the Complainant recognized the Appellant and started screaming "why did you have to shoot me?" The Appellant stood there smiling. When the officers asked if the Complainant was one hundred percent sure the Appellant was the assailant, he responded "yes."

Trial Court Opinion (T.C.O.), 6/28/13, at 3-6 (footnotes omitted).

After Appellant was found guilty of the aforementioned crimes by a jury, he was sentenced to an aggregate term of 23 to 46 years' imprisonment followed by 2 years' probation. Appellant's post-sentence motions were denied. He then filed this timely appeal and submitted a timely concise statement of matters complained of on appeal in response to the court's order requesting same. Pa.R.A.P. 1925.

On appeal, Appellant presents the following issues for our review:
I. Is [Appellant] entitled to a new trial as the verdict is not supported by the greater weight of the evidence?
II. Is [Appellant] entitled to a new trial as the result of [c]ourt error where the [c]ourt failed to grant [Appellant's] request for a mistrial after the prosecutor engaged in gross misconduct during closing by vouching for the truthfulness of the witness Meyo?

Appellant's brief at 3.

Appellant first asserts a weight of the evidence claim, contending that the verdict should not stand in that it was based upon the incredible testimony of the victim, Mr. Meyo. Appellant emphasizes that Mr. Meyo's testimony was "meandering" and confusing to the point that it "left one wondering exactly what he was talking about." Id. at 7. In his brief, Appellant identifies statements made by the victim while testifying that his attorney found unintelligible, also noting that the victim was "high on drugs" and was "greatly troubled with mental instability." Id. at 10. In particular, Appellant mentions testimony in regard to the identification of Appellant as the perpetrator of the attack. Thus, Appellant claims that because the evidence offered was so unreliable and contradictory, any verdict based upon it would be pure conjecture.

These assertions are essentially a request that this Court reassess the credibility of the witnesses and substitute our judgment for that of the finder of fact.

An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa.Super. 2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005) (citing Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa.Super. 2003), appeal denied, 574 Pa. 773, 833 A.2d 143 (Pa. 2003) (quoting Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-752 (2000)). The Pennsylvania Supreme Court has explained that "[a]ppellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence." Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial on the basis that the verdict is against the weight of the evidence, this Court has explained that "the evidence must be 'so tenuous, vague and uncertain that the verdict shocks the conscience of the court.'" Sullivan, 820 A.2d at 806 (quoting Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1351 (1994), appeal denied, 540 Pa. 597, 655 A.2d 986 (1994)).
… [I]t is well settled that we cannot substitute our judgment for that of the trier of fact. Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super. 2008). Further, the finder of fact was free to believe the Commonwealth's witnesses and to disbelieve the witness for the Appellant. See Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (the finder of fact is free to believe all, none, or part of the testimony presented at trial).

Commonwealth v. Manley, 985 A.2d 256, 262 (Pa.Super. 2009).

As in Manley, Appellant is attacking the credibility determinations and is asking us to conclude that the testimony of the victim is incredible. This we will not do; nor are we permitted to do so. See VanDivner, supra. The trial court here noted:

[] Appellant's contention that the jury's verdict was against the weight of the evidence cannot stand because their verdict does not shock one's sense of justice. When Officer Goodwin arrived at the scene, he found the door the victim was laying [sic] on when the Appellant shot him. The door had the victim's blood splattered all over it. Officer Goodwin also found bullet fragments matching information provided by the Complaint [sic]. Moreover, when Officer Wingrove took the Appellant into the Complainant's hospital room, the Complainant identified the Appellant as the shooter. When the Complainant shouted, "Why did you have to shoot me?", Officer Goodwin observed the Appellant smiling[.] Based on the evidence, the jury's verdicts do not rise to a level shocking one's sense

T.C.O. at 10.

We agree with the trial court and particularly note that the court did not conclude that the jury's verdict shocked its conscience or sense of justice. The issue for the jury rested on the credibility determinations it made after hearing all the testimony, i.e., whether or not Appellant was the guilty party. Based on our review, we have determined that the trial court did not abuse its discretion in concluding that Appellant's weight of the evidence challenge lacked merit.

In Appellant's second issue, he asserts prosecutorial misconduct, alleging that the attorney for the Commonwealth in her closing argument impermissibly vouched for the victim's truthfulness and that, therefore, Appellant should be granted a new trial. Specifically, Appellant identifies two separate instances in which the assistant district attorney (ADA) referred to the testimony of the victim as credible. First, the ADA stated "he told the whole truth, good, bad and ugly[, ]" N.T., 6/26/12, at 38, and second, when the ADA stated "[a]nd like I said, William Mayo told you the truth the whole time. He said the same story[, ]" id. at 42.

It is well established that a prosecutor, just as a defense attorney, must have reasonable latitude in presenting a case to the jury and must be free to present his or her arguments with "logical force and vigor." Counsels' remarks to the jury may contain fair deductions and legitimate inferences from the evidence presented during the testimony. The prosecutor may always argue to the jury that the evidence establishes the defendant's guilt, although a prosecutor may not offer his personal opinion as to the guilt of the accused either in argument or in testimony from the witness stand. Nor may he or she express a personal belief and opinion as to the truth or falsity of evidence of defendant's guilt, including the credibility of a witness.

Commonwealth v. D'Amato, 526 A.2d 300, 309 (Pa. 1987) (case citations omitted). Moreover, "[i]t is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion." Id. at 310.

We first note that the majority of the defense counsel's closing argument centered on attacking the victim's credibility. The ADA's closing was a response to that argument. Moreover, when defense counsel objected to the above-quoted comments, the court explained to the jury that "You determine what is true and not true. You're the fact finder[, ]" N.T., 6/26/12, at 38, and "[y]ou're the fact finders. You're the evaluators of what is true[, ]" id. at 42. The court also restated the concept that the jury is the finder of fact and the determiner of credibility in its jury instructions. See N.T., 6/26/12, at 62 ("The matter of the credibility of a witness, that is, whether his or her testimony is believable and accurate in whole or in part is solely for your determination."). We further note that the ADA did not express her personal beliefs as to the credibility of the victim's testimony. Accordingly, we conclude that the trial court did not abuse its discretion in finding that the ADA's comments during closing argument did not rise to the level of misconduct that would require a mistrial. Judgment of sentence affirmed.

Judgment Entered.

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