Com. v. Sloan, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN RANDOLPH SLOAN
Appellant No. 976 WDA 2014
Appeal from the Judgment of Sentence January 22, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013842-2011
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 22, 2015
Appellant, John Randolph Sloan, appeals from the judgment of
sentence entered January 22, 2014, by the Honorable Edward J. Borkowkski,
in the Court of Common Pleas of Allegheny County. We affirm.
We take the underlying facts of this case from the trial court’s October
21, 2014, opinion.
On September 18, 2011, Sonya Smith was watching
television inside the second floor bedroom of her residence at
9811 Glendale Road, in the Penn Hills section of Allegheny
County. Smith and Appellant’s co-defendant, Mark Martin, had
been involved in an intimate relationship since 2006, but became
estranged in May 2011. Appellant grew up in the same
neighborhood as Smith and had contact with Smith during the
course of her relationship with Martin, as Appellant and Martin
were friends. Martin was familiar with Smith’s residence from
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*
Retired Senior Judge assigned to the Superior Court.
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staying there during their relationship. Smith had locked all of
the doors to her house before retiring to her bedroom. At
approximately 3:45 A.M. Smith was awakened by the voices of
Appellant and Martin outside of her home below her bedroom
window. Smith called the police when she heard prying noises at
the kitchen window, which was directly below her bedroom.
Appellant and Martin, who were unable to gain entry through the
locked doors, broke a window pane in the kitchen door to gain
entry to Smith’s home….
Shortly thereafter, Appellant, wearing black sweatpants, a
black sweatshirt, gloves, a Halloween mask and a paintball
mask, entered Smith’s bedroom holding a 9mm firearm.
Appellant ordered Smith to lie on her bed facedown and struck
Smith in the head and arms multiple times with the firearm.
Martin, who was wearing light colored clothes and a ski mask,
entered Smith’s bedroom shortly after Appellant. Both men
straddled Smith and struck her multiple times in the arms and
head; Appellant with the 9mm firearm and Martin with a heavy
object, most likely a crowbar. Smith sustained a total of nine
broken bones in her arms, bruising on her arms and back, and a
concussion. As a result of the attack Smith spent several days in
the hospital and one month in a nursing facility for rehabilitation.
Following the assault, the two men fled the residence.
Martin left first, exiting through the sliding glass door in the
dining room, a door that because of its “stickiness” could only be
opened by someone familiar with the premises. At the same
time Penn Hills police officers arrived on scene in response to
Smith’s 911 call. As Officer Ronald Como approached Smith’s
residence he saw Martin jog across the street, away from
Smith’s home. Officer Richard Pine approached from the
opposite direction and witnessed Appellant, a short, black male
with a distinct beard, exiting out the side kitchen door of Smith’s
residence. Appellant ran towards the rear wooded area of the
home. Officer Pine gave a description of the man and his
direction of travel over the radio. As Appellant fled he discarded
the paintball mask and hat that he wore during the assault in the
wooded area behind Smith’s home. Appellant continued to flee
the scene, and discarded the Halloween mask outside a nearby
residence as he made his way to Frankstown Road.
Penn Hills Sergeant Patrick Manning, responding to Smith’s
residence, observed Appellant jogging on Frankstown Road as
the sergeant traveled toward Smith’s residence. Appellant was
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less than one-half mile away from Smith’s residence when he
was observed by Sergeant Manning. Sergeant Manning, based
on the information broadcast by officers Pine and Como, stopped
and made contact with Appellant. Appellant, who had no
identification on him, was wearing black sweatpants, a black
sweatshirt, had a distinctive beard, and had mud and grass
stains on his shoes. Appellant told Manning that he had been in
a domestic altercation nearby and was “blowing off steam.”
Appellant was taken to the police station for interview and
identification purposes. At the time Smith was hospitalized and
not available for interviewing purposes, consequently Appellant,
once identified, was released from custody pending further
investigation.
A paintball mask and hat were recovered from the wooded
area behind Smith’s residence, and the Halloween mask was
recovered from the neighbor’s hard (9818 Glendale Road). The
hat and paintball mask were tested and the DNA on both items
was a match to Appellant. At trial Smith identified the
Halloween and paintball masks as the masks worn by Appellant
during the assault. Additionally, Smith identified Appellant by
his voice and his bowlegged gait.
Trial Court Opinion, 10/21/14 at 5-8 (footnote and record citations omitted).
Appellant was charged with aggravated assault,1 burglary,2 robbery,3
and three counts of conspiracy.4 A first jury trial, conducted on April 9-13,
2012, resulted in a mistrial when the jury was unable to reach a verdict.
Following a second trial, a jury convicted Appellant of all charges, with the
exception of robbery. On January 22, 2014, the trial court sentenced
Appellant to an aggregate term of 12 to 24 years’ incarceration. Appellant
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1
18 Pa.C.S.A. § 2702(a)(1).
2
18 Pa.C.S.A. § 3502(c)(1).
3
18 Pa.C.S.A. § 3701(a)(1)(i).
4
18 Pa.C.S.A. § 903(c).
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filed a motion for reconsideration of sentence on January 31, 2014, which
the trial court denied. This timely appeal followed.
Appellant raises the following issue for our review.
Did the trial court abuse its discretion when it denied Mr. Sloan’s
post-sentence motion, because the verdicts were against the
weight of the evidence as Smith’s testimony significantly
changed from proceeding to proceeding, her identification of Mr.
Sloan was tenuous and based on conjecture, and Officer Pine’s
testimony that he observed a man with a significant beard exit
Smith’s residence is counter to his prior testimony, his police
reports, and the testimony of other officers?
Appellant’s Brief at 5.
When reviewing a trial court’s determination whether the verdict is
against the weight of the evidence, we note that,
[t]he finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. 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 breach, temporarily
and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.”
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
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Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)
(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.
2007)) (citations omitted).
Appellant’s argument on appeal fixes largely upon contradictions in the
victim’s identification testimony, as well as that of Officer Pine and Sergeant
Manning. The trial court observed:
Concerning the identification issue, the jury heard and
considered testimony from Sonya Smith, Officer Pine and
Sergeant Manning. This evidence established that: (1) Sonya
Smith knew Appellant from growing up in the neighborhood; (2)
Smith had contact with Appellant during her relationship with
Martin; (3) Smith recognized the voice of Appellant as that of
her first assailant; (4) Smith recognized the rather distinctive
bowlegged gait of Appellant, as well as his height; (5) Officer
Pine identified Appellant as the individual he saw fleeing Smith’s
home, wearing the same clothes as described by Smith, with a
beard and bowlegged gait; (6) Sergeant Manning observed
Appellant fleeing the area approximately one-half mile from
Smith’s residence and less than ten minutes after Officer Pine
observed Appellant. (…)
* * *
The jury clearly found Sonya Smith, Officer Pine, and
Sergeant Manning credible, and Appellant not so. Further, the
location of the mask with Appellant’s DNA supports the
testimony of Smith, Officer Pine, and Sergeant Manning. (…)
Trial Court Opinion, 10/21/14 at 10, 13. The trial court’s observations are
supported by the evidence of record.
Upon review, we find no abuse of discretion by the trial court in
determining that the verdicts were not against the weight of the evidence.
Appellant is correct that various discrepancies existed as to the identification
testimony of the Commonwealth witnesses at different stages in the
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proceedings, but defense counsel had the opportunity to highlight any
discrepancy on cross-examination—and indeed did so. “[T]he mere
existence of a conflict in the evidence does not mean the trier of fact was
required to resort to speculation.” Commonwealth v. Hlatky, 626 A.2d
575, 580 (Pa. Super. 1993) (citation omitted).
Appellant’s challenge to the weight of the evidence amounts largely to
a veiled attack on the credibility of the Commonwealth’s witnesses. Here,
the jury acted well-within its discretion to credit the testimony of the
Commonwealth’s witnesses and not Appellant. See Commonwealth v.
Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he 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.” As we discern
no abuse of the trial court’s discretion, Appellant’s challenge to the weight of
the evidence is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2015
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