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[U] Commonwealth v. Nieves

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSE NIEVES, Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

BENDER, P.J.E.

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 ...


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