Opinion
J-S32006-17 No. 3084 EDA 2016
06-20-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. NEFTALI VELAZQUEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 25, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010833-2013 BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Neftali Velazquez, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for first-degree murder and possession of an instrument of crime ("PIC"). We affirm.
18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
The trial court opinions correctly set forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. We add that Appellant shot and killed the victim outside a bar in the late evening/early morning of October 17-18, 2012.
Appellant raises one issue for our review:
WAS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT'S CONVICTIONS FOR FIRST-DEGREE MURDER AND POSSESSING AN INSTRUMENT OF CRIME WHERE THE ONLY EVIDENCE OFFERED IN SUPPORT OF APPELLANT'S GUILT WERE THE PRIOR INCONSISTENT STATEMENTS OF THREE WITNESSES THAT WERE SO INHERENTLY UNRELIABLE THAT THE EVIDENCE MUST BE DEEMED INSUFFICIENT AS A MATTER OF LAW?(Appellant's Brief at 4).
"Issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Generally, "any issues not raised in a [Rule] 1925(b) statement will be deemed waived." Commonwealth v. Castillo , 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord , 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). Here, Appellant failed to argue before the trial court that the statement Jonathan Rodriguez provided during his police interview was involuntary and coerced by police. Appellant also failed to include this issue in his Rule 1925(b) statement. Accordingly, Appellant waived this claim. See Pa.R.A.P. 302(a), supra ; Castillo , supra.
When examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Hansley , 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005)). Challenges to witness credibility generally implicate the weight, not the sufficiency, of the evidence. See Commonwealth v. Price , 616 A.2d 681, 683 (Pa.Super. 1992) (explaining sufficiency challenge asks whether evidence exists on record to support conviction, whereas argument that witness' account is not credible goes to weight). Nevertheless,
[I]n those extreme situations where witness testimony is so inherently unreliable and contradictory that it makes the jury's choice to believe that evidence an exercise of pure conjecture, any conviction based on that evidence may be reversed on the grounds of evidentiary insufficiency, since no reasonable jury could rely on such evidence to find all of the essential elements of the crime proven beyond a reasonable doubt.Commonwealth v. Brown , 617 Pa. 107, 136 n.18, 52 A.3d 1139, 1156 n.18 (2012).
"A prior inconsistent statement may be offered not only to impeach a witness, but also as substantive evidence if it meets additional requirements of reliability." Commonwealth v. Carmody , 799 A.2d 143, 148 (Pa.Super. 2002) (citing Commonwealth v. Lively , 530 Pa. 464, 610 A.2d 7, 9-10 (1992); Pa.R.E. 803.1).
The test is a two-part inquiry: 1) whether the statement is given under reliable circumstances; and 2) whether the declarant is available for cross-examination. With respect to the first prong, that the statement is given under reliable circumstances, our [S]upreme [C]ourt has deemed reliable only certain statements; among them is a statement that is "reduced to a writing and signed and adopted by the witness." Lively , supra , at 47[1], 610 A.2d at 10. See also Pa.R.E. 803.1(1). With respect to the second prong, cross-examination, the inconsistent statement itself must be the subject of the cross-examination in order to satisfy the test.Carmody , supra at 148 (some internal citations and footnote omitted). See also Lively , supra at 471, 610 A.2d at 10 (providing prior inconsistent statement is "demonstrably reliable and trustworthy" where statement "had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness's statements").
After a thorough review of the record, the briefs of the parties, the relevant law, and the well-reasoned opinions of the Honorable Genece E. Brinkley, we conclude Appellant's issue merits no relief. The court comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed October 20, 2016, at 2-24; Trial Court Opinion, filed May 17, 2016, at 3) (finding: testimony at trial established Victim died as result of multiple gunshot wounds; at trial, Wendy Quiles testified she stood near Victim when she saw Victim get shot multiple times and she described shooter to police; Detective Derrick Jacobs testified that he interviewed Ms. Quiles on night of shooting; Detective Jacobs stated police took verbatim statement from Ms. Quiles, each page of which she reviewed and signed; Detective Jacobs said Ms. Quiles identified photograph of Victim; Officer Thorsten Lucke testified he interviewed Ms. Quiles in January 2013; Officer Lucke stated he and fellow officer contemporaneously typed Ms. Quiles' interview questions and answers; Officer Lucke said Ms. Quiles reviewed her answers and signed her statement; Ms. Quiles identified for police photograph of Appellant as shooter and signed her name twice under photograph; Raphael Rodriguez testified at trial that, at time of shooting, he was in bar, when Victim was shot; Raphael Rodriguez testified he told police shooter was named "Nefti," but police wrote "Neftali" in his statement and told him to write "Neftali" near identification photograph of Appellant; Raphael Rodriguez said "Nefti" was not Appellant; Raphael Rodriguez also told police Appellant shot Victim after Victim approached Jonathan Rodriguez inside bar, and Appellant wanted to shoot Victim, but Jonathan Rodriguez told Appellant not to do so inside bar; Raphael Rodriguez told police Appellant was carrying two black semiautomatic pistols on night of incident, and Appellant fired so many shots at Victim that Appellant had to reload; Detective William Sierra testified he interviewed Raphael Rodriguez, who identified for police photograph of Appellant as shooter and signed his name below photograph; Detective Sierra stated Raphael Rodriguez had opportunity to review his statement, and Raphael Rodriguez made correction to and signed statement; Detective Sierra said written statement was verbatim representation of Raphael Rodriguez's interview; Detective Sierra also testified that Raphael Rodriguez signed and identified for police photograph of Appellant as shooter; Detective Sierra said police did not coerce Raphael Rodriguez's statement; Jonathan Rodriguez testified at trial that on night of shooting he was in bar with Appellant when Appellant and Victim argued; Jonathan Rodriguez said he told Appellant to take issue with Victim outside bar, and once Appellant and Victim went outside, Appellant fired several shots at Victim; Jonathan Rodriguez testified he identified for police photograph of Appellant as shooter and wrote "Shot [Victim]" near photograph; Jonathan Rodriguez referred to Appellant in his statement as "Nefti"; Jonathan Rodriguez and Raphael Rodriguez both testified Appellant threatened them not to talk about shooting and both feared consequences if Appellant learned they had talked to police about shooting; Officer Thomas Gaul testified he interviewed Jonathan Rodriguez; Officer Gaul stated Jonathan Rodriguez had the opportunity to review his statement and Jonathan Rodriguez signed each page of statement; Officer Gaul testified that Jonathan Rodriguez signed his name on photograph of Appellant and wrote "Shot [Victim]" next to photograph; evidence at trial was sufficient to allow jury to conclude Appellant was in possession of gun and fatally shot Victim multiple times). The record supports the trial court's rationale.
Furthermore, testimony at trial established that the police officers and detectives who interviewed Ms. Quiles, Raphael Rodriguez, and Jonathan Rodriguez typed the interview questions and answers comprising the witnesses' respective statements contemporaneously and verbatim. ( See N.T. Trial, 1/20/16, at 154-55, 170-72; N.T. Trial, 1/22/16, at 87-88, 120.) The record also indicates Ms. Quiles, Raphael Rodriguez, and Jonathan Rodriguez all reviewed and signed their respective written police interview statements and identification photographs. ( See N.T. Trial, 1/20/16, at 154-155, 170-73; N.T. Trial, 1/22/16, at 87-88, 95-96, 105, 118-19.) Thus, the police interview statements of Ms. Quiles, Raphael Rodriguez, and Jonathan Rodriguez were demonstrably reliable and trustworthy. See Carmody , supra ; Lively , supra. Therefore, Appellant's claim merits no relief. Accordingly, we affirm.
"Issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Here, during trial, Appellant failed to challenge the Commonwealth's use as substantive evidence of the written police interview statements of Ms. Quiles, Raphael Rodriguez, and Jonathan Rodriguez when they recanted those statements at trial. Accordingly, Appellant waived this claim. See id. We address Appellant's claim, however, insofar as Appellant challenges on appeal the reliability of the statements Ms. Quiles, Raphael Rodriguez, and Jonathan Rodriguez provided authorities during their respective police interviews. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/20/2017
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