Commonwealth v. Rodriguez-Gonzalez

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COMMONWEALTH OF PENNSYLVANIA v. VICTOR RODRIGUEZ-GONZALEZ Appellant COMMONWEALTH OF PENNSYLVANIA v. VICTOR RODRIGUEZ-GONZALEZ Appellant

Nos. 2130 EDA 2022, 2131 EDA 2022

No. J-S26042-23

Superior Court of Pennsylvania

November 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered June 23, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001953-2018 CP-51-CR-0001954-2018

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM

McLAUGHLIN, J.

Victor Rodriguez-Gonzalez appeals from the judgments of sentence at two trial court dockets for his convictions for numerous crimes: attempted murder, aggravated assault, possession of a firearm prohibited, conspiracy, firearms not to be carried without a license, carrying a firearm in public in Philadelphia, and possession of an instrument of crime;^[1] and recklessly endangering another person ("REAP") and conspiracy - REAP.^[2], ^[3] Rodriguez-Gonzalez challenges the sufficiency and weight of the evidence and the admission of testimony. He also alleges prosecutorial misconduct. We affirm. Rodriguez-Gonzalez was arrested and charged in 2018 following a shooting outside two bars. At his jury trial, the Commonwealth presented the testimony of several people present at the scene. It first called one of the victims, Wilman Gonzalez, to testify. He stated that on March 12, 2014, at a little before 3:00 a.m., he was in Marmeliz Bar with friends. N.T., Nov. 20, 2019, at 52. He heard "two shots and then somebody came to the bar knocking on the door and broke the glass." Id. at 53. He testified the security person exited the bar, and he and others followed. Id. at 54. He said that when he walked outside, he was shot in the left shoulder and the bullet came out his right side. Id. at 55-56. He stated that police officers put him in a patrol car and took him to the hospital. Id. at 57. He further testified that another person was shot in the foot. Id. Gonzalez testified that he was at Temple for a month and ten days and that he will never be able to walk again. Id. at 58. Gonzalez testified that he did not see who shot him. Id. at 63.

Gorav Vij testified next. He stated that on the night of the shooting he was at Tamborita Bar with his friends Samuel (also known as Rubio), Manny, and Bud. Id. at 72, 74. While there, Samuel introduced Vij to Rodriguez-Gonzalez, who went by Prieto. Id. at 76-77. Vij testified that he sat next to Rodriguez-Gonzalez for two hours, Rodriguez-Gonzalez was wearing jeans and a short-sleeve shirt with a sign on it, and had tattoos on both of his arms and the back of his neck, and a mole on his face. Id. at 79-80.

Vij testified that Tamborita Bar closed at 2:00 a.m., but they were allowed to stay until 3:00 a.m. Id. at 81. When the group - including Rodriguez-Gonzalez - left, they went across the street to Marmeliz Bar. Id. at 84. Its door was locked, and Samuel punched and kicked the door, and it cracked. Id. at 85. The people in the Marmeliz Bar came out and the two groups started fighting. Id. at 86. Vij testified that Rodriguez-Gonzalez said that he was going to get his gun. Id. at 87.

Vij said that when he saw Rodriguez-Gonzalez come back, Vij yelled, "Come over here, come over here. Rubio [i.e., Samuel] is getting beat up." Id. 89. Vij stated he yelled that because Rodriguez-Gonzalez had a gun in his hand. Id. Vij and Rodriguez-Gonzalez met, and Vij said, "Rubio is getting fucked up." Id. at 91. Vij testified that Rodriguez-Gonzalez said, "Fuck them," raised his arm, and shot at the Marmeliz Bar. Id. at 91-92.

Vij testified that he then saw the individual who had beat up Samuel (Rubio) run down D Street, and he asked Rodriguez-Gonzalez for the gun. Id. at 97. Vij stated he took the gun and shot twice down D Street. Id. at 98. Vij then returned the gun to Rodriguez-Gonzalez, who put it "back behind his belt." Id. at 100. Vij stated that he, Rodriguez-Gonzalez, Samuel, and Manny met later at Samuel's house. Id. He testified that Rodriguez-Gonzalez stated that he was going to destroy the gun. Id. Vij testified that he did not see anyone else with a weapon during the fight. Id. at 101. The Commonwealth showed video surveillance, and Vij identified individuals in the video, including himself and Rodriguez-Gonzalez. Id. at 102. Vij testified that the video showed the gunshots, and that Rodriguez-Gonzalez "shot twice." Id. at 122.

Vij testified that he cooperated with the Commonwealth and testified at a grand jury investigation. Id. at 136-37. He said that he had entered an open guilty plea, and that the Commonwealth had not made any promises about a sentence. Id. at 157.

On cross-examination, Vij admitted that he had not told the grand jury that the group met at Samuel's house after the shooting, and had not included that fact in his statement to the police. Id. at 180-82. He also conceded that after the police released a video of the shooting, he shaved his goatee to change his appearance. Id. at 193-94. He further conceded that he was arrested in 2019 for driving under the influence of alcohol. Id. at 207. He stated that the charge was dismissed because he was not drunk and that the Commonwealth did not cancel his agreement due to the arrest. Id. at 207-08. Vij also agreed that although he was arrested in the instant incident in 2014, he did not speak with police until 2017. Id. at 199-201. He admitted that he had pleaded guilty to lesser charges for the subject incident than those with which he initially was charged. Id. at 204.

On re-direct, the following exchange occurred regarding Rodriguez-Gonzalez's arrest:

BY [THE ASSISTANT DISTRICT ATTORNEY ("ADA")]:

Q Was Prieto ever arrested before you provided his name to the Commonwealth?

A Yes.

Q Was he?

A Yes.

[DEFENSE COUNSEL]: Objection. Asked and answered.

BY [THE ADA]:

Q He was arrested beforehand?

A Yes.

THE COURT: Overruled.

THE WITNESS: Oh, no. He was not.

BY [THE ADA]:

Q Before you provided his name, had you heard he had been arrested?

A No.

Q Okay. Do you remember when it was that you were told that he had been arrested based on what you had told us?

A Yeah, they said he got arrested for a DUI before that and then --

Q I'm talking about -- [DEFENSE COUNSEL]: I'm going to object and ask for a mistrial.

Id. at 224-25. Following an off-the-record discussion, the trial court instructed the jury to disregard Vij's last statement, which it struck from the record. Id. at 225.

At the end of Vij's testimony, Rodriguez-Gonzalez's counsel again requested a mistrial based on Vij's statement that Rodriguez-Gonzalez had been arrested for a DUI. Id. at 233. The court denied the motion, noting that Rodriguez-Gonzalez had declined a curative instruction. Id. at 234.

The prosecution also presented the testimony of investigating police officers. Detective Larry Aitkin testified that he responded to the crime scene following the shooting. N.T., Nov. 21, 2019, at 5. He identified various photographs he took that evening, including photographs of the four .40 caliber fired cartridge casings ("FCC"). Id. at 12. He testified he recovered two FCCs on the sidewalk in front of D Street and two "a little bit further west on Wyoming Avenue." Id. at 14. On cross-examination, the following exchange occurred:

Q And FCCs, when you fire a semi-automatic weapon, it kicks out usually about 12 to 24 inches, something like that, from the weapon, correct?

A I would say it could vary.

Q Well, it goes up to, what, two feet; is this the generally-accepted provision?

A I would say roughly. Yeah, I would say, yeah, probably somewhere around there.

Q In other words, you're not going to fire a firearm over here and the FCCs are going to be across the two-lane street, correct?

A No, it's unlikely.

Q Right. Someone would have to be on this corner, in this particular area, generally, firing for the FCCs to be there; is that correct?

A That would be the assumption I would work on.

Q Very well. These are found inside of the street and they're .40 caliber, as well; is that right?

A That's right, sir.

[DEFENSE COUNSEL]: And when I say "these," I'm sorry, Your Honor, that would be the 2 Xs on the bottom of C-20 for purposes of this record.

THE COURT: Thank you.

BY [DEFENSE COUNSEL]:

Q Do you know the distance between where these two FCCs -- and they're .40 caliber, too, right?

A Yes, sir.

Q And I'm referring to the ones on the corner here. And the distance between those two would be?

A I don't have the exact distance, sir.

Id. at 29-31.

On re-direct, the ADA asked about the Detective's experience with shooting firearms. Detective Aitken replied he had fired a gun thousands of times, and, in his experience, with the gun in front of him, the "ejection pull would be on the right side of the gun" and the fired cartridge casing would go back two to three feet and to the right, so that the casing "would land behind a person's right shoulder if they're right-handed." Id. at 39.

The Commonwealth then asked him hypothetical questions. For example, it asked:

Q Okay. And I want to show you 20-A. I want to ask you a couple questions about this. 20-A would be the chart.

Detective, [defense counsel] was asking you some questions and I'm going to ask you similar questions. If someone were facing down D Street and shot twice at D Street, there's a chance that those two fired cartridge would be exactly where you have them marked, correct?

[DEFENSE COUNSEL]: Objection.

BY [ADA]:

Q Well, if you're shooting in this direction, is it possible, hypothetically, since you said to the right and back three feet, that those -- someone would be shooting here down D Street, they would end up there?

[DEFENSE COUNSEL]: Objection to

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