Com. v. Johnson, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARRELL JOHNSON :
:
Appellant : No. 2721 EDA 2017
Appeal from the Judgment of Sentence July 19, 2017
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0007273-2016
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED MAY 21, 2018
Appellant, Darrell Johnson, appeals from the judgment of sentence
imposed following his jury conviction of two counts each of robbery and
aggravated assault, and one count each of criminal conspiracy, person not to
possess a firearm, and firearms not to be carried without a license.1 We
affirm.
We take the relevant facts and procedural history of this case from our
independent review of the certified record. On August 20, 2016, at about
10:30 p.m., the victim, Anthony Gibbons, went to a bar with Appellant’s cousin
and accomplice in this crime, Latia Lofton. While they were at the bar, Lofton
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1 18 Pa.C.S.A. §§ 3701, 2702, 903, 6105 and 6106, respectively. Appellant
was ineligible to possess a firearm because of a prior robbery conviction, and
did not own a valid license to conceal or carry a firearm. (See N.T.
Sentencing, 7/19/17, at 4-5, 18; N.T. Trial, 3/23/17, at 98).
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* Retired Senior Judge assigned to the Superior Court.
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went in and out of the restroom multiple times, and used her cellphone to
send text messages and make a phone call. When Gibbons and Lofton went
outside to smoke a cigarette at Lofton’s request, Appellant approached them
with his face covered. Appellant was carrying a gun, and he snatched Lofton’s
pocketbook. Appellant put the gun to Gibbons’ head and demanded his
cellphone, keys and money.2 Gibbons complied, and then pulled his own gun
from his car. Both men started shooting, and Gibbons was struck in his foot
and back. The bar owner called 911, and police and an ambulance responded
to the scene.
Police recovered Lofton’s cellphone, and downloaded and reviewed text
messages from the night of the robbery indicating that she and Appellant
planned the robbery together. One of the text messages read: “You gone
[sic] see us out front. We in parking lot. Take my purse too.” (N.T. Trial,
3/22/17, at 77, 87). Lofton eventually gave a statement to police confirming
her involvement in the robbery.3 Cell site analysis performed on Appellant’s
cellphone placed him in the general vicinity of the bar on the night of the
incident. Police recovered a handgun from Appellant’s home during a search
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2 Relevant to this appeal, Gibbons testified that he had “a couple hundred”
dollars on him, but not as much as $900.00. (N.T. Trial, 3/22/17, at 54-55).
Lofton testified that, after the robbery, Appellant gave her $300.00, and told
her that he took $900.00 from Gibbons. (See id. at 95-96).
3 She entered an open guilty plea to the charges brought against her in this
case. (See N.T. Trial, 3/22/17, at 92).
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of his residence. The gun matched the firearm used in the robbery, and DNA
testing showed Appellant’s DNA on the gun, along with two other contributors.
Appellant proceeded to a jury trial on March 22, 2017. At the conclusion
of the Commonwealth’s case, defense counsel moved to dismiss the firearms
not to be carried without a license charge, arguing that the Commonwealth
failed to establish certain elements of the crime. The trial court denied the
motion. The jury found Appellant guilty of the above-listed offenses on March
24, 2017. On July 19, 2017, the trial court sentenced Appellant to an
aggregate term of not less than twenty-five nor more than fifty years’
incarceration.
Appellant, acting pro se, filed post-sentence motions dated July 25,
2017 and docketed on August 2, 2017, which the trial court accepted as timely
under the prisoner mailbox rule.4 On August 8, 2017, the trial court entered
an order denying the post-sentence motions and advising Appellant of his right
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4This rule provides that a pro se prisoner’s document is deemed filed on the
date he delivers it to prison authorities for mailing, i.e., in this case, July 25,
2017. See Commonwealth v. Jordan, 2018 WL 1476241, at *1 n.3 (Pa.
Super. filed Mar. 27, 2018).
We note that, at the time Appellant filed his pro se post-sentence
motions, his privately-retained trial counsel had not yet withdrawn his
appearance. While hybrid representation is generally not permitted, our
Supreme Court has held that a pro se notice of appeal from a judgment of
sentence filed by a represented appellant is not automatically void. See
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) (validating pro se
notice of appeal filed by counseled criminal defendant). Accordingly, in the
interest of judicial economy, we will treat Appellant’s post-sentence motions
as timely, as the trial court did. (See Trial Court Opinion, 12/18/17, at 2).
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to appeal. Appellant filed a timely counseled notice of appeal on August 25,
2017. He timely complied with the trial court’s order to file a concise
statement of errors complained of on appeal, and the court entered an opinion
on December 18, 2017. See Pa.R.A.P. 1925.
Appellant raises three questions for our review:
1. Whether the trial court erred in denying Appellant’s challenge
to the weight of the evidence[?]
2. Whether the trial court erred in denying defense counsel’s
request for a corrupt and polluted source charge in the final charge
to the jury[?5]
3. Whether the trial court erred in failing to grant Appellant’s
motion to dismiss the firearms charge at the end of the
Commonwealth’s case[?]
(Appellant’s Brief, at 7) (unnecessary capitalization omitted).
Appellant first challenges the weight of the evidence supporting his
conviction, claiming that Latia Lofton’s testimony regarding the robbery was
not credible or believable.6 (See Appellant’s Brief, at 16-25). Appellant’s
argument focuses primarily on the discrepancy between the testimony of
Lofton and Gibbons regarding the amount of money involved in the incident,
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5 “[T]he standard charge for accomplice testimony [is] commonly referred to
as the corrupt and polluted source charge.” Commonwealth v. Lawrence,
165 A.3d 34, 44 (Pa. Super. 2017) (citation and footnote omitted). In this
case, the trial court issued such instruction immediately prior to Latia Lofton’s
testimony. (See N.T. Trial, 3/22/17, at 78-80).
6Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).
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which Appellant claims raises reasonable doubt as to whether a robbery
occurred. (See id. at 16-17, 20-22, 25; see also supra at *2 n.2). Appellant
asserts that “if [Gibbons] had a couple hundred dollars on him and Lofton
claimed [Appellant] took [$]900.00 from [Gibbons] and gave [$]300.00 to
Lofton, no robbery took place.” (Appellant’s Brief, at 25; see id. at 16, 22).
This issue does not merit relief.
At the outset, we note that the weight attributed to the
evidence is a matter exclusively for the fact finder, who is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The grant of a new trial is not
warranted because of a mere conflict in the testimony and must
have a stronger foundation than a reassessment of the credibility
of witnesses. Rather, the role of the trial judge is to determine
that, notwithstanding all of the facts, certain facts are so clearly
of greater weight, that to ignore them or to give them equal
weight with all of the facts is to deny justice.
An appellate court’s purview:
is extremely limited and is confined to whether the
trial court abused its discretion in finding that the jury
verdict did not shock its conscience. Thus, appellate
review of a weight claim consists of a review of the
trial court’s exercise of discretion, not a review of the
underlying question of whether the verdict is against
the weight of the evidence.
An appellate court may not reverse a verdict unless it is so
contrary to the evidence as to shock one’s sense of justice. [T]he
trial court’s denial of a motion for a new trial based on a weight of
the evidence claim is the least assailable of its rulings.
Commonwealth v. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal
denied, 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).
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Here, the trial court determined that the testimony of Lofton and
Gibbons, when viewed as a whole, was complimentary, and that the difference
regarding the amount of money taken was a minor discrepancy. (See Trial
Ct. Op., at 6-7). Upon review of the record, we agree. As the trial court
points out, the jury, as factfinder, heard each of the witnesses’ testimony
concerning the amount of money involved in the robbery and was free to
resolve any conflict. Therefore, we conclude that the trial court did not abuse
its discretion in finding that the jury’s verdict did not shock its conscience.
See Hicks, supra at 223.7 Appellant’s first issue lacks merit.
Appellant next challenges the trial court’s denial of his request that it
repeat, during its final charge to the jury, the corrupt and polluted source
instruction that it had already issued immediately before Latia Lofton’s
testimony. (See Appellant’s Brief, at 26-29; see also supra at *4 n.5).
Appellant acknowledges that the court gave this instruction before Lofton’s
testimony, but contends that it was necessary for the court to restate it in its
final charge. (See Appellant’s Brief, at 26-27, 29). This issue does not merit
relief.
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7 In his weight claim, Appellant also briefly challenges the DNA evidence
relating to the gun at issue in this case, arguing that although his DNA was on
the gun, police should have analyzed the two other contributing DNA samples
as potential perpetrators. (See Appellant’s Brief, at 16, 23). However, this
argument discounts the fact that the gun was found in his home shortly after
the robbery, under a mattress. (See N.T. Trial, 3/23/17, at 27, 127).
Furthermore, the jury heard testimony explaining that there were two other
contributing DNA samples on the gun, and was free to weigh this evidence.
(See id. at 77, 81); see also Hicks, supra at 223.
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When reviewing jury instructions, we are governed by the
following standard:
Our standard of review in assessing a trial
court’s jury instructions is as follows:
[W]hen evaluating the propriety of jury
instructions, this Court will look to the instructions as
a whole, and not simply isolated portions, to
determine if the instructions were improper. . . . Only
where there is an abuse of discretion or an inaccurate
statement of the law is there reversible error.
Commonwealth v. Patterson, 2018 WL 771822, at *5 (Pa. Super. filed Feb.
8, 2018) (citations omitted).
The Pennsylvania Rules of Criminal Procedure provide trial courts with
the authority to give instructions to the jury “before the taking of evidence or
at anytime during the trial as the judge deems necessary and appropriate for
the jury’s guidance in hearing the case.” Pa.R.Crim.P. 647(E). Regarding the
propriety of issuing a corrupt and polluted source instruction, this Court has
explained:
. . . [I]n any case where an accomplice implicates the
defendant, the judge should tell the jury that the accomplice is a
corrupt and polluted source whose testimony should be viewed
with great caution. . . .
The ‘corrupt source’ charge in particular is designed
specifically to address situations where one accomplice testifies
against the other to obtain favorable treatment. It directs the jury
to view the testimony of an accomplice with disfavor and accept it
only with care and caution.
Lawrence, supra at 44-45 (citations and most quotation marks omitted).
Here, as noted, the record reflects that the trial court did issue a
thorough and comprehensive corrupt and polluted source instruction,
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spanning more than two pages of the trial transcript, immediately before
Lofton’s testimony. (See N.T. Trial, 3/22/17, at 78-80). When defense
counsel requested that the court repeat the instruction as part of its final
charge, it declined to do so, stating: “I’m going to tell the jury again, as I’ve
told them previously, the instructions are considered as a connected series
and I’ll remind them of the things I said earlier.” (N.T. Trial, 3/23/17, at 102).
At the beginning of its final charge, the court explained this continuum in
instructions to the jury; stated that it would be happy to repeat any previously
issued instruction; and directed that all of its instructions, taken together,
constitute the law the jury must follow. (See N.T. Trial, 3/24/17, at 43). The
court then issued a general charge regarding witness credibility, instructing
the jury to consider whether the witnesses had any bias or motive to testify
falsely, or any interest in the outcome of the case. (See id. at 43-45).
Upon review, we discern no abuse of discretion or error of law in the
trial court’s decision to decline to issue a second corrupt and polluted source
jury instruction. See Patterson, supra at *5. The court issued the
instruction when it deemed necessary and appropriate, and reminded the jury
in the final charge of its obligation to follow all instructions. See Pa.R.Crim.P.
647(E). In his brief, Appellant concedes that he could find no case law to
support his argument that the trial court was required to repeat an instruction
it had already issued. (See Appellant’s Brief, at 27). To the contrary, it is
well-settled that the jury is presumed to follow all of the trial court’s
instructions. See Commonwealth v. Smith, 167 A.3d 782, 790 (Pa. Super.
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2017), appeal denied, 179 A.3d 6 (Pa. 2018). Accordingly, Appellant’s second
issue merits no relief.
In his final issue, Appellant claims the trial court erred in failing to grant
his motion to dismiss the firearms not to be carried without a license charge
at the end of the Commonwealth’s case. (See Appellant’s Brief, at 30-34).
He argues that the court should have granted this motion where the
Commonwealth failed to establish the elements of transport or concealment
of the gun. (See id. at 30, 33). This issue is waived.
“[W]hen a defendant does not rest following denial of a demurrer, but
instead presents a defense, the correctness of the ruling on the demurrer is
not preserved for appellate review; the proper procedure is to challenge the
sufficiency of the evidence.” Commonwealth v. Zambelli, 695 A.2d 848,
849 n.1 (Pa. Super. 1997) (citations omitted).
In this case, the record reflects that Appellant presented a defense after
the court denied his motion for a demurrer. (See N.T. Trial, 3/23/17, at 100-
01, 106). Therefore, we agree with the trial court and the Commonwealth
that he did not properly preserve this issue for appellate review. See
Zambelli, supra at 849 n.1; (see also Trial Ct. Op., at 11-12;
Commonwealth’s Brief, at 14-15).
Moreover, even if Appellant instead had challenged the sufficiency of the
evidence to support the firearms violation, he would not be entitled to relief.
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
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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 [that
of] 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. Mickel, 142 A.3d 870, 876 (Pa. Super. 2016) (citations
omitted).
Section 6106 of the Crimes Code provides, in pertinent part, that “any
person who carries a firearm in any vehicle or any person who carries a firearm
concealed on or about his person, except in his place of abode or fixed place
of business, without a valid and lawfully issued license under this chapter
commits a felony of the third degree.” 18 Pa.C.S.A. § 6106(a)(1). “[T]o
establish a violation of section 6106, the Commonwealth must establish that
a defendant acted intentionally, knowingly or recklessly with respect to each
element[.]” Commonwealth v. Scott, 176 A.3d 283, 291 (Pa. Super. 2017)
(citations and internal quotation marks omitted).
Here, the evidence showed that Appellant drove his work van to the bar
on the night of the incident. (See N.T. Trial, 3/22/17, at 161-63). He
approached Gibbons and Lofton outside of the bar with a gun, put the gun to
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Gibbons’ head, and shot him in the foot and back. (See id. at 23-26). Police
then recovered the gun from his home. (See N.T. Trial, 3/23/17, at 27).
Upon review, viewing the evidence admitted at trial in the light most
favorable to the Commonwealth as verdict winner, we conclude that the
evidence was sufficient to sustain Appellant’s conviction for firearms not to be
carried without a license. The evidence clearly established that Appellant
intentionally carried a firearm in a vehicle without a valid and lawfully issued
license. See 18 Pa.C.S.A. § 6106(a)(1); Scott, supra at 291. Therefore,
Appellant’s final issue would not merit relief, even if it were not waived.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
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