Com. v. Compton, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LORENZO COMPTON
Appellant No. 1444 EDA 2015
Appeal from the Judgment of Sentence Entered January 6, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004886-2009
BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 07, 2016
Appellant, Lorenzo Compton, appeals from the judgment of sentence
entered January 6, 2011 in the Court of Common Pleas of Philadelphia
County following his convictions of aggravated assault, robbery, conspiracy,
burglary, and possession of an instrument of crime.1 Upon review, we
affirm.
The trial court summarized the background information as follows.
This is a direct nunc pro tunc appeal by [Appellant],
Lorenzo Compton, from a judgment of sentence entered against
him on January 6, 2011. . . . At a consolidated nonjury trial
conducted on May 13, 2010, he and a codefendant, John Booker,
were convicted of Aggravated Assault, Robbery, Conspiracy,
Burglary, and Possession of an Instrument of Crime. The
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Respectively, 18 Pa.C.S.A. §§ 2702(a), 3701(a)(1)(ii), 903(1)(1),
3502(a)(1), 907(a).
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charges arose from their participation in an armed home
invasion robbery. . . .
. . . All of the evidence about what occurred at the home came
from the testimony of [Jessica Rivera], the lessee of the
premises, and her testimony about what occurred afterwards
was fully corroborated and supplemented by that of some of the
responding and arresting police officers.
It proved that on January 5, 2009, at approximately 12:30
a.m., as Rivera was exiting her parked Lexus across the street
from her house, she was ambushed by Booker and [Appellant],
both armed, the latter of whom held his gun to the back of her
head and told her to open the trunk of her car. They then forced
her to take them into her house where her boyfriend, [Darell]
Griffin, and her cousin, [Fransisco] Arana, were staying and were
present at the time. They first demanded “the gun”, money and
drugs, and then “rushed” the victims up the stairs, forced them
into a bedroom and made them lie on the floor. While that was
occurring, five more men entered the home. While going up the
stairs, [Appellant] pointed his gun at the back of Griffin’s head
and pulled the trigger but no shot was fired. The victims were
held in the bedroom at gunpoint by Booker while [Appellant] and
the others went through the house picking up things and putting
them in trash bags, and while Booker was wearing a mask,
[Appellant] was not. After they took the victims back
downstairs, [Appellant] took Rivera down to the basement,
searched around, verbally threatened her and then told her to
stay there and went back upstairs. The other two victims were
then pushed down into the basement and the intruders
apparently locked the basement door and left. Rivera and Griffin
looked out a window and saw the perpetrators drive away,
Booker getting into an Impala which pulled away first, followed
by a white Honda or Acura and then Rivera’s Lexus. Other than
Booker, she could not tell which individuals got into which cars
or were driving. They went back upstairs and, while Griffin or
Arana called 911, Rivera flagged down a passing police car.
While she was telling the policemen what happened, she noticed
her car being driven nearby. The officers and the victims got in
the police car and gave chase during which she described the
defendants, one of the officers called in a report, radio calls were
sent out and other police officers began responding. After a
while some of the responding officers caught [Appellant] and
Booker and had the victims identify them. They also found the
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Impala and the Lexus and some of Rivera’s property, but no
weapons were found. The defendants did not submit any
evidence.
Trial Court Opinion (T.C.O.), 7/7/15, at 1-3 (citation to record omitted).
Upon convictions of the aforesaid crimes, the trial court imposed
concurrent sentences of incarceration of a minimum of ten to a maximum of
twenty years each on the assault, robbery, conspiracy, and burglary
convictions, and a minimum of two and one-half to a maximum of five years
of incarceration on the possession conviction. No post-trial motions were
filed. Appellant was granted leave to file a late appeal on April 28, 2015,
pursuant to his unopposed petition for relief under the Post Conviction Relief
Act, 42 Pa.C.S. § 9541 et seq, in which he claimed ineffective assistance of
trial counsel in failing to file a timely appeal in spite of having been
requested to do so.
On appeal, Appellant raises one issue for our review.
1. Whether the evidence was insufficient to convict
[A]ppellant of Aggravated Assault, Robbery, Criminal Conspiracy
and Possession of an Instrument of Crime as because the
[A]ppellant did not fit the description of the assailant that
complainant, Jessica Rivera, gave to the police and no gun was
identified or recovered.
Appellant’s Brief at 2. While Appellant alleges that he is challenging only the
sufficiency of the evidence, Appellant makes both sufficiency and weight of
the evidence claims.
In reviewing a sufficiency of the evidence claim, we determine
“whether the evidence at trial, and all reasonable inferences derived
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therefrom, when viewed in the light most favorable to the Commonwealth as
verdict winner, are sufficient to establish all elements of the offense beyond
a reasonable doubt.” Commonwealth v. Stevenson, 894 A.2d 759, 773
(Pa. Super. 2006). Additionally, we do not reweigh evidence, substituting
our judgement for that of the fact-finder. Id. “The fact-finder, when
evaluating the credibility and weight of the evidence, is free to believe all,
part, or none of the evidence.” Id. “The evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt unless the evidence is so weak and
inconclusive that as a matter of law no facts supporting a finding of guilt
may be drawn.” Id.
Appellant challenges sufficiency based upon his assertion he did not fit
the description of the assailant and that no gun was identified or recovered.
Appellant’s sufficiency claim is troubling because Appellant fails to indicate
which elements of which crimes the evidence was insufficient to prove.
Appellant’s failure to specify adequately the elements of each crime that this
purported lack of evidence does not support and without citation to any
authority may constitute sufficient grounds to find waiver on these issues.
See Pa.R.A.P. 2119. Nonetheless, to the extent Appellant’s identification
and possession of a gun are necessary elements of the various crimes of
which he was convicted, we will decline to find waiver and address the
claims, as both facts challenged are readily discernable from the record.
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With respect to Appellant’s identification, the evidence was more than
sufficient to support a finding that Appellant committed the crimes charged.
As the trial court noted,
[a]ll of the victim’s direct testimony made absolutely clear that
she had more than sufficient opportunity to see [Appellant]’s
face and be able to accurately recognize him, and the court does
not see, anything in the record whatsoever to suggest that her
identification of him at the time of the arrest was in any way
questionable or based upon an insufficient foundation.
T.C.O., 7/7/15, at 6.
To the extent that possession of a firearm was an element being
challenged, the fact that a firearm was not recovered does not preclude a
conviction. See, e.g., Commonwealth v. Nickol, 381 A.2d 873, 876-77
(Pa. 1977) (testimony that the appellant was in possession of a firearm was
sufficient to prove he possessed and concealed that firearm). The record
indicates that Appellant held a firearm to Ms. Rivera’s head, that while going
up the stairs he pointed his gun at Griffin’s head and pulled the trigger, and
also that he led Ms. Rivera down to her basement at gunpoint. N.T. Waiver
Trial, 5/13/10, at 39, 62-63. Further, Ms. Rivera saw Appellant in
possession of a firearm in a clearly lit room. Id. at 60-63. In other words,
the record contains ample evidence from which the fact-finder could infer
that Appellant possessed a firearm during the commission of the crimes,
even though a firearm was not recovered.
To the extent Appellant’s issues raised could be considered a challenge
to the weight of the evidence, we discern Appellant’s argument to be that
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the verdicts were against the weight of the evidence because his convictions
were based solely on the testimony of the victim, Ms. Rivera. To support
this assertion, Appellant argues that Ms. Rivera’s testimony, that the man
who pressed the gun to her head was wearing a tan Sean John baseball
jacket, conflicts with Officer Andre Hudgens’s testimony, that Appellant was
wearing a green jacket with a black hoodie underneath. Id. at 12-13.
Initially, we note that to the extent a weight claim is being asserted, it
is waived because Appellant failed to properly preserve this issue for our
review. A challenge to the weight of the evidence must be raised prior to
appeal in accordance with Pennsylvania Rule of Criminal Procedure 607(a) or
it will be waived, regardless of whether the appellant raises the issue on
appeal or the trial court addresses the issue in its Rule 1925(a) opinion.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).2 Instantly,
Appellant failed to raise a weight of the evidence claim prior to or after
sentencing. In fact, to the extent a weight claim was raised, Appellant
raised it for the first time in his Rule 1925(b) statement. Even if preserved,
Appellant still would not be entitled to relief for the following reasons.
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2
Rule 607 requires that a “claim that the verdict is against the weight of the
evidence shall be raised with the trial judge in a motion for a new trial: (1)
orally, on the record, at any time before sentencing; (2) by written motion
at any time before sentencing; or (3) in a post-sentence motion.”
Pa.R.Crim.P. 607.
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We review a challenge to the weight of the evidence according to the
following standard.
The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial on the
basis that the verdict was against the weight of the evidence, a
trial court is not to grant relief unless the verdict is so contrary
to the evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.
Moreover, when evaluating a trial court’s ruling, we keep
in mind that an abuse of discretion is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will,
manifest unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to the law and
is based on the facts of record.
Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (citation
omitted).
The trial court found Ms. Rivera’s testimony credible. In its Rule
1925(a) opinion, the trial court noted that Appellant would have had plenty
of time to put on a different jacket between the time Ms. Rivera saw
Appellant and when the police apprehended him. T.C.O., 7/7/15, at 7-8.
Moreover, as already stated, the trial court found that the victim’s direct
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testimony made it abundantly clear she had more than sufficient opportunity
to see Appellant’s face and to accurately recognize him. Our review of the
record confirms the trial court did not abuse its discretion in determining the
verdicts were not against the weight of the evidence based upon Appellant’s
challenge to his identification.
As Appellant is not entitled to relief on his sufficiency claim or a weight
claim, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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