Commonwealth v. Lopez

• Citation: 2012 PA Super 161,57 A.3d 74
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jose LOPEZ, Appellant.
• Decision Date: 08 August 2012
• Court: Superior Court of Pennsylvania

57 A.3d 74

2012 PA Super 161

COMMONWEALTH of Pennsylvania, Appellee

v.Jose LOPEZ, Appellant.

Superior Court of Pennsylvania.

Submitted June 4, 2012.

Filed Aug. 8, 2012.

Mitchell S. Strutin, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and Karen B. Jordan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and COLVILLE, J. ^*

OPINION BY STEVENS, P.J.

Appellant Jose Lopez (hereinafter “Appellant”) appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on January 26, 2011, at which time he was sentenced to an aggregate sentence of twelve and one-half (12 1/2) years to twenty-five (25) years in prison following his convictions of aggravated assault graded as a first degree felony,¹ violations of the Uniform Firearms Act ² and Possessing an Instrument of Crime.³ Upon our review of the record, we affirm.

The trial court detailed the relevant facts herein as follows:

Mr. Maurice Robinson (“complainant”) testified as follows: In the late evening of December 2, 2008, he was standing at the corner of 5th and York Streets conversing with four older gentlemen. N.T., 12/10/10, at 29. The complainant observed [ ] Appellant, accompanied by an older lady, walking down the street. Id. at 32. The complainant recognized [ ] Appellant as an individual from the neighborhood and recalled previously seeing him four or five times on that exact corner, each time selling heroin. Id. at 34. The complainant also sold heroin on the same corner in 2008. Id. at 29. The complainant indicated he could see him “as clear as day.” Id. at 37. [ ] Appellant, who was walking a dog, transferred the leash to the woman in his company. Id. at 39. The complainant was familiar with the woman from the neighborhood and knew where she lived. N.T., 12/10/10, at 54. The complainant observed [ ] Appellant walk up 5th Street where he briefly bent down. Id. at 43.[ ] Appellant then walked toward the complainant and the two made eye contact. Id. at 44.[ ] Appellant proceeded to walk past the complainant. Id. [ ] Appellant then turned around and the complainant observed him holding a black semiautomatic handgun. Id. at 47–48. [ ] Appellant then discharged the weapon multiple times, striking the complainant once in the upper left leg. Id. at 52. The complainant immediately ran to a payphone located approximately two blocks away and called 911. N.T., 12/10/10, at 53.[ ] Appellant ran the opposite direction toward Sixth Street. Id.

Philadelphia Police Officer Jason Judge, badge number 5428, testified that he responded to 500 York Street following a radio call at approximately 3:59 a.m. Id. at 134. Officer Judge came into contact with the complainant, who directed him to 2311 North 5th Street. Id. at 124. Officer Judge subsequently transported the complainant to Temple Hospital. Id. at 131. Officer Judge prepared an incident report, and was later interviewed by detectives assigned to the case. Id.

Detective Shawn Leahy, badge number 8136, testified regarding his investigation of the case. Detective Leahy interviewed the complainant at approximately 8:17 a.m. N.T. 12/10/10, at 164. Detective Leahy also presented a photo array to the complainant, after which the complainant identified [ ] Appellant as the shooter. Id. at 168. Detective Leahy acquired a C.A.D. report from a 911 call placed at 3:58 a.m. detailing a shooting. Id. at 178–80. Recovered in Detective Leahy's presence were three shell casings from the southwest corner of 5th and York Streets. Id. at 182. Two casings were .25 caliber and one was .22 caliber. Id. Detective Leahy also executed a search warrant at 2311 North 5th Street, second floor, rear bedroom. Id. at 189. The residence was located approximately one-quarter block from the location of the shooting. N.T. 12/10/10, at 241. Recovered pursuant to the search were .25 caliber ammunition, men's clothing, and multiple documents bearing the name Angel Adorno. Id. at 190–191. Some of the mail was addressed to 2311 North 5th Street. Id. at 191. Other documents, including bank statements[,] were addressed to 135 North 11th Street. Id. at 200. The brand of the ammunition recovered matched that of the fired casings recovered at the scene. Id. at 196, 198. Among the documents recovered were multiple letters authored by “Jamie.” Id. at 199. Through his investigation,Detective Leahy determined that [ ] Appellant maintained the alias Angel Adorno. N.T. 12/10/10, at 187.

Philadelphia Police Officer Michael Cermignano, badge number 4034, testified that he entered the property at 2311 North 5th Street. N.T. 12/13/10, at 13. The residence was a home converted into apartments. Id. Officer Cermignano accessed each of the rooms except for the second floor rear room, which was padlocked. Id. at 15. Officer Cerm[i]gnano was able to gain entry to the remaining rooms which were open. Id. Officer Cermignano presented two Hispanic males for possible identification by the complainant. Id. at 9, 14. The complainant indicated that neither individual was the shooter. Id.

Ms. Jamie Eisenhuth testified that she maintained a relationship with [ ] Appellant and resided with him at 135 North 11th Street from approximately July 2006 to February 2009. N.T., 12/13/10, at 47–48. Ms. Eisenhuth also testified that [ ] Appellant maintained the alias “Angel Adorno” for purposes of their written leasing agreement. Id. at 64. Ms. Eisenhuth's hours of employment during their period of cohabitation were 6:00 a.m. to 2:00 p.m. Monday through Friday. Id. at 50. Ms. Eisenhuth frequented a bar with [ ] Appellant located near 4th and York Streets. Id. at 62. Ms. Eisenhuth was not present with [ ] Appellant during her hours of employment. Id. at 63.

The Commonwealth introduced the following stipulations: Firearm Examiner Officer Gaghan would testify that the two .25 caliber fired cartridge casings were manufactured by PMC. Id. at 68. He would also testify that the factory ammunition box containing ten .25 caliber cartridges was [sic] also manufactured by PMC. N.T. 12/13/10, at 69. The single .22 caliber fired cartridge was manufactured by Winchester. Id. The two .25 casings were ejected from the same firearm while the .22 caliber fired casing could not have been ejected from the same weapon. Id. Additionally, a custodian of records from the Pennsylvania State Police would testify to the authenticity of a Certificate of Nonlicensure for the Appellant on December 2, 2008. Id. at 71. Finally, if called to testify, a custodian of records for Temple University Hospital would authenticate the complainant's medical records and specifically indicate that the complainant was treated for a gunshot wound to his left thigh. Id. at 73.

Trial Court Opinion, filed 2/7/12 at 1–4.

Appellant filed a timely notice of Appeal on February 8, 2011. The trial court filed its Order pursuant to Pa.R.A.P. 1925(b) on October 20, 2011, and Appellant filed his Concise Statement of Errors Complained of on Appeal on November 4, 2011. The trial court filed its Pa.R.A.P. 1925(a) Opinion on February 7, 2012.

In his brief, Appellant raises the following five (5) issues for our review:

I. Is [Appellant] entitled to an arrest of judgment with regard to his convictions since the evidence is insufficient to sustain the verdicts of guilt as the Commonwealth failed to sustain its burden of proving [Appellant's] guilt beyond a reasonable doubt?

II. Is [Appellant] entitled to a new trial as a result of the trial court's error in its ruling that allowed the Commonwealth to present hearsay during the testimony of Detective Shawn Leahy in the form of a statement prepared by a third party?

III. Is [Appellant] entitled to a new trial as a result of the trial court's error in its ruling that allowed the Commonwealth to present hearsay during the testimony of Detective Shawn Leahy in the form of a statement of the complainant, Maurice Robinson?

IV. Is [Appellant] entitled to a new trial as a result of the trial court's error in its ruling that allowed the Commonwealth to present Jamie Eisenhuth as a witness at trial?

V. Is [Appellant] entitled to a new trial as a result of the trial court's error in its ruling that denied [Appellant's] motion for a mistrial at the conclusion of the prosecutor's summation?

Brief for Appellant at 5. We will consider each of these issues in turn.

When presented with a challenge to the sufficiency of the evidence, this Court's well-settled standard of review is as follows:

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 [this] 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. Chine, 40 A.3d 1239, 1242 (Pa.Super.2012) (citations omitted).

A person is guilty of aggravated assault when he “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or...