Com. v. Hollingsworth, V. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR HOLLINGSWORTH :
:
Appellant : No. 3268 EDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013796-2012
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 30, 2019
Victor Hollingsworth appeals, nunc pro tunc, from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas on July
18, 2014 following his conviction for robbery and criminal conspiracy to
commit robbery. Hollingsworth challenges the sufficiency and weight of the
evidence supporting his convictions, and raises multiple allegations of trial
court error.1 We affirm.
On November 2, 2012, Derrick Johnson was walking home from work
around 11th and Spencer Streets when he observed three males in hooded
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1 In his concise statement, Hollingsworth alleged he was unduly prejudiced
because the trial court recited the bills of information to the jury which stated
that his co-conspirator displayed a gun and demanded property from the
victim. Hollingsworth failed to raise this issue in his brief, thus we find it
waived for our review.
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sweatshirts at the bus stop. As Johnson crossed the street, he noticed the
three males put their hoods on. While one male stayed at the bus stop, the
second and third male followed Johnson across the street. The second male
asked Johnson if he knew what time it was. The male then drew a black
handgun, pointed it at Johnson and told him not to run. Frightened by the
gun, Johnson ran toward his home approximately three houses away.
As he fled, he heard the gun being cocked and someone shout, “Shoot
him. Shoot him. Shoot him.” He banged on his door until his mother answered.
He told her what happened and she immediately called the police. After
responding to the call, police stopped Hollingsworth at 9th and Spencer Street
because he matched Johnson’s description of one of the males as a black male,
caramel-skinned, in his early twenties, carrying a book bag, and wearing a
black and white hoodie jacket. Police took Johnson to that location, where he
positively identified Hollingsworth as one of the males who had robbed him.
After a jury trial, Hollingsworth was found guilty of the above charges
and sentenced to sixty-nine to one-hundred and eighty months’ incarceration.
Counsel for Hollingsworth filed an appeal based on insufficiency and weight of
the evidence. This Court dismissed the appeal as untimely.
On October 30, 2017, Hollingsworth filed, pro se, his first petition
pursuant to the Post Conviction Relief Act (“PCRA”).2 Counsel was appointed
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2 42 Pa.C.S.A. §§ 9541-9546.
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who filed an amended PCRA petition seeking to reinstate Hollingsworth’s direct
appellate rights nunc pro tunc. After a hearing, the PCRA court granted the
petition and reinstated Hollingsworth’s direct appellate rights. This nunc pro
tunc appeal followed.
On appeal, Hollingsworth challenges the weight of the evidence, the
sufficiency of the evidence, the trial court’s failure to provide a Kloiber3
instruction, and the trial court’s failure to sustain an objection to the admission
of witness testimony. Since a sufficiency claim, if successful, prohibits retrial,
we will address this issue first.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,
661 (Pa. Super. 2007) (citation omitted).
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3 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). As more fully
developed below, a Kloiber charge is an instruction to the jury that an
eyewitness identification should be viewed with caution when certain
circumstances exist. See Commonwealth v. Ali, 10 A.3d 282, 303 (Pa.
2010).
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“The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). “As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584
(Pa. Super. 2004) (citation omitted). Therefore, we will not disturb the verdict
“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.” Bruce,
916 A.2d at 661 (citation omitted). Furthermore, a mere conflict in the
testimony of the witnesses does not render the evidence insufficient because
it is within the province of the fact finder to determine the weight to be given
to the testimony and to believe all, part, or none of the evidence.
Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).
Here, Hollingsworth’s claim relates solely to the sufficiency of the
Commonwealth’s identification evidence. Accordingly, we limit our discussion
to the evidence for that element. See Commonwealth v. Cain, 906 A.2d
1242, 1244 (Pa. Super. 2006) (declining to address the sufficiency of the
evidence supporting every element of an offense where the appellant raises a
claim relating to one specific element); see also Commonwealth v.
Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (“In addition to proving the
statutory elements of the crimes charged beyond a reasonable doubt, the
Commonwealth must also establish the identity of the defendant as the
perpetrator of the crimes”).
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[E]vidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations and quotation marks omitted).
Hollingsworth makes a limited argument that the Commonwealth failed
to prove that he committed the crimes because Johnson’s identifications were
inconclusive and he did not match the description given by Johnson. He
asserts that he was not wearing a backpack and his jacket had a white stripe
on it, rather than writing. However, any issues with the certainty of a witness’s
identification is a matter of weight of the evidence, not its sufficiency, and we
do not reweigh the credibility of witnesses on appeal. Since the prior
identifications were admitted as substantive evidence, the jury was free to
conclude that Hollingsworth was one of the robbers. Therefore,
Hollingsworth’s sufficiency argument fails.
Hollingsworth next contends the verdict was against the weight of the
evidence. We do not review challenges to the weight of the evidence de novo
on appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
Rather, we only review the trial court’s exercise of its discretionary judgment
regarding the weight of the evidence presented at trial. See id.
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“[W]e may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice.” Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is
said to be contrary to the evidence such that it shocks one’s sense of justice
when “the figure of Justice totters on her pedestal,” or when “the jury’s
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.” Commonwealth v. Davidson, 860 A.2d
575, 581 (Pa. Super. 2004) (citations omitted).
Hollingsworth contends that because Johnson recanted and testified that
he was unable to identify Hollingsworth at trial, the verdict was against the
weight of the evidence. At the close of the post-sentence hearing, the trial
court reject Hollingsworth’s challenge to the weight of the evidence:
As to the weight of the evidence, finding that the finder of
fact, which in this case was the jury, was free to believe and to
determine credibility of the witnesses. And notwithstanding[] the
fact that there was a defense witness that essentially attempted
to provide an alibi for the defendant, that the jury obviously did
not believe that witness and, rather, credited the prior
identification[] that the complainant had made. Which included an
on-scene identification[] that was corroborated by an officer and
… the complaining witness, [and indicated several times that he
was confident in his identification of Hollingsworth as one of the
three robbers] and then subsequent other identifications that
occurred prior to trial and I do recall that he was not able to
identify the defendant at trial, [and I properly instructed] the jury
how they can use those prior inconsistent statements.
I will not disturb the verdict and find that the verdict is not
so contrary to the evidence as to shock one’s sense of justice.
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N.T., 2/5/2015, at 6-7. The court’s discussion is well supported by the record,
and we cannot conclude the court’s reasoning represents an abuse of its
discretion. Hollingsworth’s challenge to the weight of the evidence does not
merit relief.
Hollingsworth next contends the trial court erred in declining to give the
jury a Kloiber instruction. “A Kloiber instruction informs the jury that an
eyewitness identification should be viewed with caution when either the
witness did not have an opportunity to view the defendant clearly, equivocated
on the identification of the defendant, or has had difficulties identifying the
defendant on prior occasions.” Commonwealth v. Sanders, 42 A.3d 325,
332 (Pa. Super. 2012) (citation omitted). When these circumstances exist,
“the Court should warn the jury that the testimony as to identity must be
received with caution.” Kloiber, 106 A.2d at 826-827.
After a review of the record, we do not find the trial court erred in
refusing to issue a Kloiber instruction under the circumstances. There is no
evidence that Johnson previously misidentified Hollingsworth as one of the
robbers. To the contrary, Johnson unequivocally identified Hollingsworth as
one of the robbers during an in person identification less than an hour after
the robbery. He specifically made an accurate identification of Hollingsworth
as the man wearing a black and white hoodie and carrying a book bag during
the robbery. Additionally, the record does not show an issue of whether
Johnson could see the perpetrators clearly. Rather, Johnson provided a
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statement to police on the night of the robbery indicating he was able to see
the faces of all three male robbers when he was crossing the street prior to
the robbery. Finally, Johnson again unequivocally identified Hollingsworth as
one of the robbers during the preliminary hearing.
Although Johnson recanted at trial and declined to make an in-court
identification, it was up to the jury whether or not to credit the prior
inconsistent statements. Additionally, the trial court did issue an instruction
pertaining to the identification evidence, and inconsistent statements. See
N.T., 5/15/2014, at 10-12. The jury was apprised of the issue concerning
Johnson’s prior identifications and inconsistent recantation in court.
Accordingly, we find the trial court did not err in failing to instruct the jury
that it must accept the prior identifications with caution where there was no
in-court identification. “Unlike the typical Kloiber situation, where there is a
damaging in-court identification of the accused, the same type of concerns
are not present where a witness declines to identify the defendant in court.”
Sanders, 42 A.3d at 335.
Finally, Hollingsworth argues the trial court erred in allowing Officer
Tyrone Bacon and Officer Anthony Comitalo to testify about the lighting
conditions at the location of the robbery and Officer Comitalo to opine
regarding where someone running in a particular direction in that area would
be based on the timing.
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When considering the admission of evidence, our standard of review is
very narrow. Our review of a trial court's evidentiary ruling is limited to
determining whether the trial court abused its discretion. See
Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005). “An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citation omitted). Finally, “[t]o
constitute reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.” Commonwealth v.
Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).
Pennsylvania Rule of Evidence 701 states that in cases where a witness
is not testifying as an expert, his or her opinion testimony must be limited to
what is: “(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 701.” Pa.R.E. 701.
Upon review, we conclude that the court did not abuse its discretion in
allowing the challenged testimony. The officers did not testify as to what
Johnson himself was able to see, but rather testified about their own
perception and personal knowledge of the area in which the crime occurred,
and in general what the lighting conditions were like. See N.T., 5/14/2014, at
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21-22, 73-74. Further, Officer Comitalo’s testimony regarding possible
locations of the offender was based on his experience, his perceptions, and
his personal knowledge of the area in which the crime occurred. See id., at
74-75 (discussing location and direction of streets, and distance between
blocks). None of the testimony required scientific or technical knowledge. His
testimony was relevant to the jury’s understanding of the map of the area and
the location of events and movements of people. The jury was capable of
weighing the officers’ testimony using their own common sense and every day
experiences. Hollingsworth’s final issue merits no relief.
As we conclude none of Hollingsworth’s issue merit relief, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judge Olson joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/19
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