Com. v. Correa-Ayala, V. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VLADIMIR CORREA-AYALA,
Appellant No. 918 EDA 2015
Appeal from the Judgment of Sentence March 6, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001506-2014
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 15, 2016
Appellant, Vladimir Correa-Ayala, appeals from the judgment of
sentence entered following his conviction of three counts of robbery and one
count of tampering with physical evidence. We affirm.
This case involves three robberies that took place on the morning of
March 7, 2014, near the Pennsylvania Department of Transportation (“Penn
DOT”) building in Allentown, Pennsylvania. The trial court summarized the
facts of the three robberies as follows:
At approximately 6:30 a.m. on March 7, 2014, Kimberly
Bubbenmoyer was walking from her car parked in a parking deck
to her place of employment at the [PennDOT building] located at
10th and Hamilton Streets, Allentown, Lehigh County,
Pennsylvania. As she traversed the 900 block of Maple Street,
approximately a block and a half away from the Penn DOT
building, she noticed a male emerge from behind a snow bank
and begin to walk in front of her. He then turned left down a
side alley perpendicular to Maple Street. As Ms. Bubbenmoyer
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walked past the entrance to the alley, the same male came out
of the alleyway. Ms. Bubbenmoyer next remembered being
pushed to the ground forcefully. While on the ground, the male
pointed a long knife with a 12 to 14 inch blade at her while
standing over her. Ms. Bubbenmoyer heard the male repeating
the same word in Spanish, though she could not understand it.
Ms. Bubbenmoyer, afraid that the man would stab her and
hoping that she could appease him, put her purse to the side.
She did so and watched as the male took the purse. The male
remained standing over her and was motioning with his hands
for her to get up from the ground and to leave the area. The
entire incident lasted three to four minutes. She sustained a
sprained ankle and bone contusions on her lower back as a
result of the incident.
Ms. Bubbenmoyer went directly to the Allentown Police
Department Substation located at 10th and Hamilton Streets,
Allentown, Lehigh County, Pennsylvania. Although the lighting
was not good at that time of morning, she described the
assailant to the police as wearing gray sweatpants, a black
baseball cap and had a black hoodie sweatshirt pulled around his
face so that she could only see his eye area. She also told the
police that along with some personal items such as identification
cards, credit cards, a checkbook and hygiene products, she had
a handgun in her purse.
At approximately 7:20 a.m. the same day, Bernadette
Taylor had parked her car in the parking garage and was walking
towards the Penn DOT building to go to work while talking on her
cellular telephone. As she walked down the 900 block of Maple
Street, she glanced down an alley located near the residence at
954 Maple Street. She saw a man wearing a red sweatshirt
pointing a gun at her and motioning for her to come into the
alley. The man’s face was covered with a black hat but for his
eyes and he was wearing dark pants. She could only see his eye
area.
Ms. Taylor refused to go into the alley and yelled for the
man to get away from her. She was scared that she would be
shot and ran to the Penn DOT building, approximately a half of a
block away. As she ran, she glanced behind but no longer saw
the man. When she arrived at the Penn DOT building, she called
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9-1-1 and was advised that the police were aware of the
situation.
At approximately 7:29 a.m., Adam Stettler was walking
from the parking garage at 9th and Maple Streets, Allentown,
Lehigh County, Pennsylvania to work at Penn DOT. The distance
is approximately one block. Halfway down Maple Street, Mr.
Stettler noticed a person emerging from the alleyway. The man
stopped approximately 10 feet in front of Mr. Stettler. Mr.
Stettler noticed that the man was wearing a bright red hooded
sweatshirt pulled taut around his face so that only the top of the
nose to the middle of the forehead was exposed. The man
began to speak in Spanish and motioned to the alley where he
had emerged from. Mr. Stettler noticed that the man was
holding a small, dark-colored pistol, pointed at Mr. Stettler’s
chest area.
Believing that the man was attempting to take something
from him, Mr. Stettler shook his head “no.” The man racked the
slide on the handgun and Mr. Stettler interpreted the action to
mean that the man was putting a bullet in the chamber of the
handgun. Mr. Stettler began to run back towards the garage
area.
At that moment, police officers Matthew Diehl and Andrew
Fegley arrived on scene in Officer Fegley’s marked patrol vehicle.
Having been alerted to the two prior robberies in the area, the
officers were patrolling the area. As they approached 10 th and
Maple Streets, Officer Fegley identified the area of Maple Street
to Officer Diehl to show him where the robberies had been
reported to have taken place. As the officers glanced up Maple
Street, they noticed two males standing in the street. One man
had his hands down and extended at the sides. The other
individual was wearing red and looked away from the officers as
their vehicle came into view.
Officer Fegley quickly drove on Maple Street towards the
two individuals. The individual who originally had his arms at his
sides began to point down the alleyway (Hazel Street). Officer
Diehl exited the passenger side of the patrol car and ran down
the alleyway. He caught a glimpse of the individual wearing red,
but could not find anyone as he got to the rear of the residential
buildings on the 900 block of Maple Street. After approximately
15 to 20 seconds, Officer Diehl heard a crashing noise and saw
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an individual in a red hoodie jump from the fence between 956
and 954 Maple Street to the adjacent property at 25 South Tenth
Street.
Trial Court Opinion, 6/8/15, at 1-5. The male, later identified as Appellant,
was apprehended in an apartment at the 25 South Tenth Street property.
On February 6, 2015, following a jury trial, Appellant was convicted of
three counts of robbery and one count of tampering with physical evidence.
On March 6, 2015, Appellant was sentenced to serve an aggregate sentence
of nine to eighteen years of incarceration. Appellant timely appealed.
Appellant and the trial court complied with the requirements of Pa.R.A.P.
1925.
Appellant presents the following issues for our review:
A. Was the evidence insufficient to support the verdict of
robbery for the following reasons: the person who accosted
Bernadette Taylor and Adam Stettler neither demanded money
or possessions, nor did he make any gestures which indicated a
demand for movable property. In order to prove robbery, it
must be proven beyond a reasonable doubt that [Appellant] was
attempting to take the movable property of Bernadette Taylor
and Adam Stettler.
B. Was the verdict against the weight of the evidence for the
following reasons:
A. Neither Kimberly Bubbenmoyer nor Bernadette
Taylor could identify [Appellant] as the person who
accosted them;
B. The weapon that was recovered, and the
recovered stolen items were not found in
[Appellant’s] possession;
C. There was no fingerprint or DNA evidence
connecting [Appellant] to the crimes;
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D. The clothing recovered by the police did not
match the description given by the victims (red and
gray hoodie vs. red hoodie; black hoodie vs. red
hoodie; gray sweatpants vs. dark bottoms);
E. [Appellant] was arrested in a multi unit
apartment, but the police did not investigate any
other apartment for evidence or suspects;
F. [Appellant] was not breathing heavily, was not
sweating, and did not have a flushed face when
arrested, even though the police testified they had
just been in a foot pursuit with the suspect.
Appellant’s Brief at 4-5 (full capitalization omitted).
In his first issue, Appellant contends that the evidence was insufficient
to support the verdict for robbery where the Commonwealth failed to prove
beyond a reasonable doubt that Appellant was attempting to take the
movable property of Bernadette Taylor and Adam Stettler. Appellant’s Brief
at 15. Specifically, Appellant contends that as to Bernadette Taylor, the
evidence reveals that although the man was pointing a gun at her, he “did
not say anything or make any noise[,] nor did he try to take anything or
grab anything from her.” Id. (internal cites omitted). With regard to Adam
Stettler, the man spoke to Mr. Stettler in Spanish, which Mr. Stettler did not
understand. Id. at 15-16. Appellant argues that he “did not try to take
anything or grab anything from him.” Id. at 16. Accordingly, Appellant
contends that there is no evidence to show a theft or attempted theft from
Bernadette Taylor or Adam Stettler. Id.
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When examining a challenge to the sufficiency of evidence, our
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 [the above] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).
Appellant was charged with robbery under 18 Pa.C.S. § 3701(a)(1)(ii),
which provides as follows:
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
***
(ii) threatens another with or
intentionally puts him in fear of
immediate serious bodily injury;
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18 Pa.C.S. § 3701 (a)(1)(ii). “An act shall be deemed ‘in the course of
committing a theft’ if it occurs in an attempt to commit theft or in flight after
the attempt or commission.” 18 Pa.C.S. § 3701(a)(2). “Theft” is defined as
the unlawful taking of “movable property of another with the intent to
deprive him thereof.” 18 Pa.C.S. § 3921(a).
Additionally, this Court has explained the following regarding a
conviction under 18 Pa.C.S. § 3701(a)(1)(ii):
[T]he Commonwealth need not prove a verbal utterance or
threat to sustain a conviction under subsection 3701(a)(1)(ii). It
is sufficient if the evidence demonstrates aggressive actions that
threatened the victim’s safety. For the purposes of subsection
3701(a)(1)(ii), the proper focus is on the nature of the threat
posed by an assailant and whether he reasonably placed a victim
in fear of “immediate serious bodily injury.” The threat posed by
the appearance of a firearm is calculated to inflict fear of deadly
injury, not merely fear of “serious bodily injury.” A factfinder is
entitled to infer that a victim was in mortal fear when a
defendant visibly brandished a firearm.
Commonwealth v. Hopkins, 747 A.2d 910, 914-915 (Pa. Super. 2000)
(internal citations omitted).
The trial court provided the following analysis on this claim:
The jury heard testimony from Ms. Taylor that she was
approached by an individual wearing a red sweatshirt who
pointed a gun at her and motioned for her to come into the alley.
Ms. Taylor testified that she was frightened and began to run
away. Mr. Stettler testified that a man approached him as he
walked down Maple Street. When they were approximately 10
feet away from each other, the individual began to speak to Mr.
Stettler in Spanish and motion towards the alley nearby. Mr.
Stettler noticed the man was holding a gun. When the individual
began to walk closer to the alley where he was directing Mr.
Stettler, Mr. Stettler held up his hands and refused to go into the
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alley. At that point, Mr. Stettler heard the individual rack the
slide of the gun.
After review of the evidence as it pertains to Ms. Taylor
and Mr. Stettler, the Court believes that the Commonwealth
presented sufficient evidence at trial to prove beyond a
reasonable doubt that the Appellant was attempting to commit a
theft at the time he approached both Ms. Taylor and Mr. Stettler.
In the case of Ms. Taylor, the Commonwealth put forth evidence
that Ms. Taylor was approached and motioned into an alleyway,
at gunpoint. Although Ms. Taylor stated that the individual did
not physically grab at her purse or attempt to physically take
anything from her, we find that the evidence that the individual
was pointing a gun at her and waving her into a nearby alleyway
allows a permissible inference that the individual was attempting
to rob Ms. Taylor. Clearly frightened, Ms. Taylor ran
immediately from the scene and reported the incident to the
police. Taken in conjunction with evidence of the robbery which
occurred just minutes earlier, we find that the Commonwealth
presented sufficient evidence at trial to sustain the Robbery
conviction with respect to Ms. Taylor.
Likewise, the Commonwealth provided sufficient evidence
to satisfy the elements of Robbery as charged in Mr. Stettler’s
case. Mr. Stettler testified that he was approached by an
individual holding a gun who attempted to waive him into an
alley. The individual spoke to Mr. Stettler in Spanish, but Mr.
Stettler was unable to understand him. When Mr. Stettler
refused to go into the alley by holding up his hands and saying
no, the individual racked the slide on the gun. Mr. Stettler
testified that he did not follow the individual because he was
terrified of what would occur should he go in the alley as
directed. He interpreted the individual’s actions as an intention
to take something from him. When police arrived by chance, Mr.
Stettler pointed out the individual to them. Based on the
evidence and the permissible inferences derived from the
attendant circumstances, the Commonwealth provided sufficient
evidence to sustain the conviction for Robbery with respect to
Mr. Stettler.
Trial Court Opinion, 6/8/15, at 14-16.
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Here, the evidence aptly summarized by the trial court supports the
conclusion that Appellant’s actions were conducted “in the course of
committing a theft,” as he was attempting to take the property of Ms. Taylor
and/or Mr. Stettler. As explained in Hopkins, it is unnecessary for the
Commonwealth to prove a verbal utterance or threat by Appellant. The
evidence demonstrated aggressive actions by Appellant that threatened the
victims’ safety; specifically, pointing a firearm at them and attempting to
force them into an alleyway. Viewing the evidence in the light most
favorable to the Commonwealth, the evidence indicates that Appellant was
attempting to take something from them. Moreover, in the course of
committing that theft, Appellant threatened Ms. Taylor and Mr. Stettler with
immediate serious bodily injury by brandishing the firearm. Thus, we agree
with the trial court that the evidence was sufficient to support Appellant’s
convictions of robbery. Appellant’s claim fails.
In his second issue, Appellant asserts that the verdict was against the
weight of the evidence. Appellant’s Brief at 16. Appellant presents the
following bases for this argument:
[1)] neither Kimberly Bubbenmoyer nor Bernadette Taylor could
identify [Appellant] as the person who accosted them; [2)] the
weapon that was recovered, and the recovered stolen items
were not found in [Appellant’s] possession; [3)] there was no
fingerprint or DNA evidence connecting [Appellant] to the
crimes; [4)] the clothing recovered by the police did not match
the description given by the victims (red and gray hoodie vs. red
hoodie; black hoodie vs. red hoodie; gray sweatpants vs. dark
bottoms); [5)] [Appellant] was arrested in a multi unit
apartment, but the police did not investigate any other
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apartment for evidence or suspects; and [6)] [Appellant] was
not breathing heavily, was not sweating, and did not have a
flushed face when arrested, even though the police testified they
had just been in a foot pursuit with the suspect.
Id. at 16-17 (full capitalization omitted).
With respect to a weight claim, we apply the following standards:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,
footnote, and internal quotation marks omitted). “An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we 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. Serrano, 61 A.3d 279,
289 (Pa. Super. 2013).
In addressing Appellant’s weight of the evidence claim, the trial court
provided the following explanation supporting its determination that the
verdict was not against the weight of the evidence:
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Viewing the evidence presented at trial, the Court has
determined that the jury’s verdict is not so contrary to the
evidence presented that a new trial is necessary. The jury was
free to evaluate the evidence presented by the Commonwealth
and give what importance it wished to each fact presented.
Although the evidence alluded to in his Statement of Matters
Complained of on Appeal could have been relied on by the Jury
to establish reasonable doubt as to the Appellant’s participation
in the crimes charged, we believe that the additional evidence
which was provided at trial through testimony allows this Court
to find that the Jury’s verdict did not so “shock one’s sense of
justice” that a new trial is necessary.
Specifically, we find that “evidence 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.” Commonwealth v. Orr, 38 A.3d 868, 873
(Pa.Super. 2011)(internal citations omitted). Mr. Stettler
testified that an individual stepped out from an alleyway, directly
in front of him. He stated that the individual was approximately
10 feet away from him and was wearing a red hooded sweatshirt
which covered much of his face, other than the area between the
top of his nose to the middle of his forehead. The individual
spoke to Mr. Stettler, though it was in Spanish and Mr. Stettler
was unsure of exactly what the individual was saying. After
several seconds of interaction with the individual, he noticed
that the individual had a small, dark-colored pistol. The
individual waved Mr. Stettler into an alley, but Mr. Stettler
refused to go, communicating to the individual by saying no and
waving his hands. Mr. Stettler saw the weapon pointed at his
chest and heard the slide on the pistol become engaged.
Fearing being shot, Mr. Stettler fled the scene. Approximately an
hour or two later, police accompanied Mr. Stettler to an open
parking lot area and brought the Appellant out of the apartment
for his view. Mr. Stettler identified the Appellant as the person
he had the encounter in the alleyway with. He stated that he
recognized the Appellant’s defined brow line and the way his
eyes were set into his head. Furthermore, Mr. Stettler identified
the Appellant as the individual he encountered in the alley at the
preliminary hearing and at trial.
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The remaining averments in the Statement of Matters
Complained of on Appeal, while demonstrating discrepancies in
the testimony, do not require that a new trial take place.
Although Ms. Bubbenmoyer and Ms. Taylor were unable to
identify the Appellant as the individual that they encountered,
they provided consistent evidence that the individual spoke
Spanish. Ms. Bubbenmoyer further stated that she believed the
individual to have been “Spanish” as he had darker skin that she
could see around his eye areas. She also testified that her purse
was taken and that in that purse was a .32 caliber pistol. Ms.
Taylor testified that the individual she encountered had a red
sweatshirt on and that he had a gun. The Commonwealth also
provided evidence that when the police arrived at the apartment,
they found the Appellant lying in bed, draped in a red hooded
sweatshirt, next to the left companion sandal of the sandal found
embedded in the fence where Officer Diehl observed the red-
hooded sweatshirt wearing individual flee after a foot pursuit.
Additionally, Ms. Bubbenmoyer’s gun (which was stolen during
the course of the incident involving her) was located in a
dumbwaiter shaft accessible by occupants of the apartment,
including the Appellant, via a specialized tool located in a toolbox
found in the first floor apartment. Further, a bullet matching Ms.
Bubbenmoyer’s gun was located between the mattress and box
spring directly under where the Appellant was sleeping.
Trial Court Opinion, 6/8/15, at 11-13.
The trial court’s summation of the evidence at trial is supported by the
evidence of record. Moreover, the jury, sitting as the finder of fact, was free
to believe all, part, or none of the evidence against Appellant, as was its
right. The jury weighed the evidence and concluded Appellant perpetrated
the crimes in question. This determination is not so contrary to the evidence
as to shock one’s sense of justice. We decline Appellant’s invitation to
assume the role of fact finder and reweigh the evidence. Accordingly, we
conclude that the trial court did not abuse its discretion in determining that
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Appellant’s weight of the evidence claim lacked merit. Thus, this claim fails
to provide Appellant relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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