Com. v. Edmondson, H. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HERMAN EDMONDSON :
:
Appellant : No. 18 WDA 2019
Appeal from the Judgment of Sentence Entered December 10, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000038-2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 22, 2019
Appellant Herman Edmondson appeals from the judgment of sentence
entered following his jury trial convictions for four counts of conspiracy to
commit aggravated assault.1 He challenges the trial court’s admission of
certain video evidence as well as the sufficiency and weight of the evidence.
We affirm.
The facts and procedural history of this case, as gleaned from the trial
court’s opinion and the certified record, are as follows. On October 28, 2017,
Lawrence Johnson shot two victims, Martez Hunter and Arthur Smart, outside
the Ultraview Lounge (“Ultraview”) in Erie, Pennsylvania. The victims
sustained serious bodily injury as a result of the shooting. Johnson ultimately
entered a negotiated plea of no contest to aggravated assault while Appellant
____________________________________________
1 18 Pa.C.S.A. §§ 903 and 2702(a)(1) & (4).
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proceeded to a jury trial on the charge of conspiracy to commit aggravated
assault.
At trial, the Commonwealth presented the testimony of several
witnesses, as well as video surveillance evidence (“Video”), depicting several
angles inside and directly outside of the Ultraview on the night in question. To
authenticate the Video, the Commonwealth presented the testimony of
Valinton Foster, a part-owner of the building where the Ultraview was located.
Foster testified that he was aware of a video surveillance system, which
captured footage from both inside and outside the bar, and he was familiar
with the images taken from those cameras. N.T. 10/15/18 a.m. at 57-66. He
also explained that the computer system used to maintain the surveillance
materials was located on the first floor of the building. Id.
The Commonwealth also provided the testimony of Rotesha Silveus, an
eyewitness to the events of October 28. Silveus admitted to driving Johnson
to the Ultraview that night, although she claimed that she did not know him
prior. Id. at 28; 34. Silveus also testified that the Video accurately depicted
those present outside the Ultraview at the relevant time and the events that
took place on that night. Id. at 31-33; 40-44. Appellant also testified
regarding the Video by narrating the footage, scene-by-scene, and explaining
what he personally observed from his vantage point. N.T. 10/15/18 p.m. 39-
61; 67-69. He also explained his familiarity with the surveillance system, due
to his former employment as security for the Ultraview. Id. at 59-61.
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After the trial court admitted the Video over Appellant’s objections, the
Commonwealth showed it to the jury. The Video showed Appellant, at the
Ultraview on the night in question, escorting Johnson into the bar at
approximately 2:48 a.m. through the back entrance, which did not have a
metal detector. In his testimony, Appellant admitted that, ordinarily,
individuals would not be permitted to enter the bar at that time of night. Id.
at 45-46. The Video from inside the Ultraview depicts Johnson and Appellant
talking closely with each other, after they entered the establishment. At
approximately 2:54 a.m., the pair left the bar area but returned shortly
thereafter. The victims left the Ultraview at approximately 3:00 a.m., and
Appellant and Johnson followed closely behind. Once outside Appellant and
Johnson spoke briefly and shook hands by Silveus’s car. Very shortly
thereafter, the Video shows Johnson running behind the victims and shooting
them. While the rest of the bystanders seem to flee in other directions,
Appellant appears to wait for Johnson and then flees the scene with him in the
same direction.
Appellant testified in his own defense. Although he denied being
involved with the shooting, Appellant admitted lying to police by claiming that
he did not know Johnson before the night in question. Id. at 62. Further,
Appellant admitted that he and Johnson had contact with each other, via
phone and text, hours after the shooting. Id. at 72-73. Detective Bogart
confirmed this contact, stating that telephone records established that
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Johnson and Appellant had been in contact 141 times during that time period.
Id. at 26.
After a jury convicted Appellant of the above-referenced charges, the
trial court sentenced him to an aggregate sentence of 84 to 168 months’
incarceration on December 10, 2018. Appellant filed a timely post-sentence
motion, challenging, inter alia, the weight of the evidence. On December 14,
2018, the trial court issued an order granting Appellant credit for time served
but denying his post-sentence motion in all other respects. Appellant filed a
timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The
trial court issued a responsive Pa.R.A.P. 1925(a) opinion.
Appellant presents the following issues on appeal:
1. Whether the trial court erred in allowing into evidence video
footage of the events that occurred at the Ultraview Lounge on
October 28, 2017, when said footage was not authenticated by
a witness who could testify to the accuracy of the portrayal.
2. Whether the evidence was sufficient to support a finding of guilt
for four counts of conspiracy to commit aggravated assault
where the only evidence the Commonwealth introduced to
support the allegations was the improperly-admitted video
footage of [Appellant] conversing with the shooter prior to the
shooting, and footage of him fleeing the scene in the same
general direction of the shooter after shots were fired.
3. Whether [Appellant’s] conviction of four counts of conspiracy
to commit aggravated assault was against the weight of the
evidence where the only evidence the Commonwealth
introduced to support the allegations was the improperly-
admitted video footage of [Appellant] conversing with the
shooter prior to the shooting, and footage of him fleeing the
scene in the same general direction of the shooter after the
shots were fired.
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Appellant’s Br. at 6.
In his first issue, Appellant argues that the trial court erred by admitting
the Video in this case. Specifically, Appellant contends that the
Commonwealth failed to present authenticating evidence to establish that the
Video portrayed events accurately. To this end, Appellant maintains that
witness Foster, while testifying about the surveillance system in place at the
Ultraview, was unable to confirm that the Video accurately depicted the events
on the night in question nor was he able to establish how the video was
prepared or handled after it was obtained by police. Thus, Appellant asserts
that the trial court erred by admitting the Video on the basis of Foster’s
testimony. We disagree.
“A trial court has broad discretion to determine whether evidence is
admissible and a trial court's ruling on an evidentiary issue will be reversed
only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa.Super. 2013) (citing Commonwealth v. Cook, 676 A.2d 639,
647 (Pa. 1996)). We do not disturb a ruling admitting evidence “unless that
ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support to be clearly erroneous.” Id. (quoting
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our
scope of review over an evidentiary question is plenary, we may review the
ruling within the context of the entire record. Id.Authentication is required prior to the admission of evidence. The
proponent of the evidence must introduce sufficient evidence that the matter
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is what it purports to be. See Pa.R.E. 901(a). “Testimony of a witness with
personal knowledge that a matter is what it is claimed to be can be sufficient.”
Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa.Super. 2018).
Demonstrative evidence, like the Video here at issue, “is tendered for
the purpose of rendering other evidence more comprehensible to the trier of
fact.” Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa.Super. 2011)
(citation omitted). To authenticate video evidence, “[i]t is not necessary that
the maker of the videotape testify to the tape’s accuracy; any witness familiar
with the subject matter can testify that the tape was an accurate and fair
depiction of the events sought to be shown.” Commonwealth v.
Impellizzeri, 661 A.2d 422, 428 (Pa.Super. 1995) (citations omitted).
In this case, Appellant contends that the trial court erred by relying on
Foster, who did not testify that the Video accurately represented the events
on the night in question, to authenticate the Video. However, the trial court
did not rely upon Foster’s testimony alone. See Tr. Ct. 1925(a) Opinion,
2/14/19, at 4-5. In fact, the court considered the testimony of eyewitness
Silveus, who could confirm that the Video accurately depicted those present
at the Ultraview at the relevant time, as well as the events of the shooting
and the aftermath. Further, Appellant also testified regarding the Video,
narrating the video screen by screen. Further, in his testimony, Appellant
admitted to his familiarity with the surveillance system, due to his previous
employment at the Ultraview. Thus, we hold that the trial court had ample
evidence upon which to conclude that the Video was a fair and accurate
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depiction of the events portrayed. See Mangel, 181 A.3d at 1158-59;
Impellizzeri, 661 A.2d at 428. Therefore, the trial court did not abuse its
discretion by finding that the Commonwealth properly authenticated the
Video. See Huggins, 68 A.3d at 966; Pa.R.E. 901(a).
Turning to Appellant’s second issue, he argues that the evidence was
insufficient to support his conviction for conspiracy to commit aggravated
assault. Appellant does not argue that Johnson did not commit aggravated
assault by shooting the victims but instead maintains that the evidence was
insufficient to prove that he and Johnson entered into a conspiracy to commit
aggravated assault. To this end, he avers that the Video does not establish
that he knew about Johnson’s intention to shoot the victims, let alone that he
assisted Johnson in committing the crime. Appellant points out that the Video
did not have audio, so no incriminating conversations between himself and
Johnson could be heard. Further, he contends that the Video merely depicts
him conversing with Johnson and running away from the crime scene in the
same direction as Johnson. Appellant also emphasizes that the
Commonwealth did not present any testimony that could establish that
conversations took place between Johnson and himself regarding plans for a
shooting.
Appellant likens his case to that presented in Commonwealth v.
Swerdlow, 636 A.2d 1173 (Pa.Super. 1994). In that case, our Court
concluded that the evidence was insufficient to support the appellant’s
conspiracy to commit burglary conviction. The trial court found that the
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evidence the Commonwealth presented, in that case, failed to establish any
connection between the perpetrator of the burglary and the appellant except
for the appellant’s presence in his own home, a location the perpetrator used
at some point as a staging area for the burglary. Id. at 1178. Our Court
emphasized that mere presence at part of the scene of the crime is not enough
to sustain a conspiracy conviction absent additional evidence to establish a
connection with the perpetrator of the underlying offense. Id. In this case,
Appellant contends that he was also merely present at the scene of the
shooting and the Commonwealth failed to provide any evidence of a
conspiracy agreement between himself and the shooter. Thus, Appellant
asserts that the evidence was likewise insufficient to support his conspiracy
convictions. We do not agree.
Upon a challenge to the sufficiency of the evidence, “we must 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 crime charged is established
beyond a reasonable doubt.” Commonwealth v. Green, 204 A.3d 469, 484
(Pa.Super. 2019). “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Id. at 484-85 (citation omitted).
Under Pennsylvania law, “[a] person is guilty of conspiracy with another
person or persons to commit a crime if with the intent of promoting or
facilitating its commission he . . . agrees to aid such other person in the
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planning or commission of such crime[.]” 18 Pa.C.S.A. § 903(a)(2). A
conspiracy agreement may be established via circumstantial evidence.
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). “The
conduct of the parties and the circumstances surrounding such conduct may
create a web of evidence linking the accused to the alleged conspiracy beyond
a reasonable doubt.” Id. (citation omitted). The conspiracy agreement itself
“can be inferred from a variety of circumstances, including, but not limited to,
the relation between parties, knowledge of and participation in the crime, and
the circumstances and conduct of the parties surrounding the criminal
episode.” Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)
(citation omitted).
Here, the trial court concluded that the circumstantial evidence
presented was sufficient to support Appellant’s conspiracy convictions. The
court noted that the Video established that Appellant escorted Johnson into
the Ultraview through a back entrance, which Appellant knew was not
equipped with a metal detector. Thereafter, the Video showed Appellant and
Johnson conversing with each other and remaining in physical proximity to
each other. Once the victims left the bar at approximately 3:00 am, Appellant
and Johnson followed close behind. The video also depicts the pair engaging
in a handshake outside the Ultraview, seconds before the shooting.
Thereafter, Appellant is seen waiting for Johnson before running away from
the scene with the shooter. Further, the trial court emphasized that the
Commonwealth established that Appellant and Johnson were in repeated
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contact with each other shortly after the shooting, via voluminous telephone
calls and text messages.
Viewing the evidence presented in favor of the Commonwealth as the
verdict-winner, as we must, we agree with the trial court’s determination that
ample evidence supported Appellant’s convictions. See Green, 204 A.3d at
484. As the trial court noted, a web of circumstantial evidence, via the Video
and the telephone records, proved that Appellant was not only present at the
crime scene but confirmed a close connection between Appellant and Johnson
sufficient to establish a conspiracy agreement between the two. See Devine,
26 A.3d at 1147; Perez, 931 A.2d at 708. Thus, contrary to Appellant’s
contention, the instant case differs from Swerdlow in that the evidence
showed that Appellant was more than merely present at the crime scene.
Therefore, we conclude that the evidence was sufficient to support Appellant’s
conspiracy to commit aggravated assault convictions.
In his last issue on appeal, Appellant contends that his convictions for
conspiracy to commit aggravated assault were against the weight of the
evidence. He argues that the Video does not depict him behaving in an “out
of the ordinary way” during the night in question. Appellant’s Br. at 24. He
asserts that the Video only shows him conversing with Johnson and running
in the same direction as the shooter, after the shooting took place. Thus,
Appellant maintains that his convictions denied him “fundamental justice”
because the convictions were contrary to the weight of the evidence. Id. at
25. We find Appellant’s weight claim to be devoid of merit.
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When reviewing a weight claim, we begin by noting that the jury is free
to believe all, some, or none of the evidence. Commonwealth v. Roane, 204
A.3d 998, 1001 (Pa.Super. 2019). Further, “[a] trial court may only grant a
new trial on a weight claim ‘when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail.’”
Commonwealth v. Hall, 199 A.3d 954, 962 (Pa.Super. 2018) (citation
omitted). We give great deference to the trial court’s ruling on a weight claim,
as the court observed the evidence presented at trial, and will only reverse if
the trial court has abused its discretion. Roane, 204 A.3d at 1001; Hall, 199
A.3d at 962.
In the instant case, the trial court found that Appellant’s contention that
his convictions were contrary to the weight of the evidence lacked merit and
its determination in this regard was not an abuse of discretion. See Tr. Ct.
Op. at 10. As outlined above, a web of circumstantial evidence linked Appellant
to Johnson and a conspiracy to shoot the victims. The Video shows Appellant
in close contact with Johnson at the scene of the crime and the subsequent
contact between Appellant and the shooter was established by the voluminous
amount of telephone calls and text messages between the pair shortly after
the shooting. Accordingly, we conclude that the trial court did not abuse its
discretion by determining that Appellant’s conspiracy convictions did not shock
one’s sense of justice and thus were not contrary to the weight of the
evidence. See Roane, 204 A.3d at 1001; Hall, 199 A.3d at 962.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2019
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