The state Superior Court on Monday affirmed the conviction of former Pittsburgh Pirates closer Felipe Vazquez, who was found guilty nearly two years ago of sexually assaulting a minor.
Vazquez, 31, is serving a 2- to 4-year prison term at the State Correctional Institution at Camp Hill after a jury found him guilty on 15 counts, including statutory sexual assault, unlawful contact with a minor, indecent assault of a minor and sexual abuse of a child.
Vazquez challenged his conviction at the Superior Court on four grounds, including that the verdict was against the weight of the evidence and that there was insufficient evidence by the prosecution to disprove his mistake of age defense.
The court ruled against Vazquez on each of those.
He also argued that the trial judge in the case, Westmoreland County Common Pleas Judge Scott Mears, erred in allowing the prosecution to ask Vazquez to demonstrate for the jury how the victim in the case walked.
That issue was the subject of oral argument in December before a three-judge panel of the Pennsylvania Superior Court.
During trial, Assistant District Attorney Jim Lazar asked Vazquez to demonstrate how the victim walked during cross-examination at trial.
Vazquez balked at the request, but when the judge asked if Vazquez was objecting, his attorney responded: “How much more does the jury have to hear? I think we all can take judicial notice.”
Later, he said, “If Mr. Lazar insists that Mr. Vazquez walk like a woman, Mr. Vazquez can do his best imitation of a woman that he would know.”
Vazquez’s defense attorney, Jon Pushinsky, told the court that forcing his client to demonstrate how a woman walks — in sashaying her hips — was demeaning for his client, a 6-foot-3-inch Black Venezuelan man.
In his brief, Pushinsky wrote that the demonstration was “a demeaning and emasculating cross-gender performance (that) had the effect of evoking base racial stereotypes that influenced the jury’s perception of Vazquez and the evidence presented at trial.”
At oral argument, Pushinsky said, “Having Black men make fools of themselves in front of a white audience” was equivalent to making Vazquez appear to be a “courtroom jester.”
In the 63-page opinion, the Superior Court said Vazquez’s defense attorney at trial failed to formally object to the walk, and because he did, the issue was waived.
“The trial court, in addressing appellant’s evidentiary challenge in its … opinion, found the issue was waived because ‘trial counsel, who was explicitly asked if he wanted to object, declined to do so,’” the appellate court wrote. “We agree.”
The court disagreed with Pushinsky’s argument that trial counsel’s comments were a “de facto objection.”
“A concession that the evidence is admissible is insufficient to preserve the issue for appellate review,” the court wrote. “Moreover, defense counsel’s dialogue regarding the commonwealth’s request did not contain a request for a mistrial, a curative instruction or a motion.”
The Superior Court judges did say in their opinion that Vazquez’s trial attorney’s failure to preserve the record “may give rise to a claim of ineffective assistance of counsel,” which can be raised by the defendant during the next stage of his appeals.
“Such a claim, however, is not before this court in the case, and we cannot address it,” they wrote.
