Com. v. Russell, C. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CAMERON RUSSELL,
Appellant No. 1193 WDA 2013
Appeal from the Judgment of Sentence Entered May 9, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002325-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 21, 2014
Appellant, Cameron Russell, appeals from the judgment of sentence of
an aggregate term of 54-108 months’ incarceration and five years’
probation, imposed following his conviction for burglary and related offenses.
Appellant claims the trial court abused its discretion when it determined that
the verdict was not against the weight of the evidence. After careful review,
we affirm.
Appellant was charged by criminal information with the following
offenses: robbery, 18 Pa.C.S. § 3701(a)(1)(ii); burglary, 18 Pa.C.S. §
3502(c)(1); receiving stolen property (RSP), 18 Pa.C.S. § 3925(a); theft by
unlawful taking, 18 Pa.C.S. § 3921(a); terroristic threats, 18 Pa.C.S. §
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*
Retired Senior Judge assigned to the Superior Court.
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2706(a)(1); simple assault, 18 Pa.C.S. § 2701(a)(3); recklessly endangering
another person (REAP), 18 Pa.C.S. § 2705; and conspiracy, 18 Pa.C.S. §
903(c). Appellant was found not guilty of conspiracy, but was convicted of
all remaining counts, following a jury trial held on February 12-13, 2013.
The trial court summarized the facts adduced at trial as follows:
On the evening of January 30, 2012, victim Rachel
Wickline was at the home of her boyfriend, Parker Gresh, at 405
Gardner Street, McKees Rocks, while he was at work. As she sat
on the couch, with the front door locked, she heard the door
knob turning and saw two men enter the home. The intruder[s']
faces were partially covered with bandanas, and one of them had
a gun. Ms. Wickline immediately recognized one of the intruders
as [Appellant], Cameron Russell, but she did not recognize the
other man, who was brandishing a weapon. The one intruder,
whom she recognized as [Appellant] by his facial characteristics
and voice, called her by name and threatened to pistol whip her.
In fact, Ms. Wickline, during the course of the home invasion,
even asked the second man, "Why is Cameron doing this?", and
he replied, "You have to ask him." The co-[d]efendant in the
case held a gun, which he pointed at her head, while [Appellant]
kept yelling about, and searching for, a gun. The intruders left
with an AR-15 Colt rifle and several magazine clips. According to
Ms. Wickline, the entire encounter lasted fifteen (15) minutes.
There was no sign of forced entry into the home.
Ms. Wickline had become acquainted with [Appellant] in
the month or so prior to this incident. Approximately one (1)
month prior to the robbery, Ms. Wickline was introduced to
[Appellant] by his friend, Edward "EJ" Donnelly, a cousin of Mr.
Parker Gresh, Ms. Wickline's boyfriend. Mr. Dannelly, Mr. Gresh,
[Appellant], [Appellant]'s girlfriend, Nicole Newman, and the
victim were sitting in the same room and playing videogames at
Mr. Gresh's house. Mr. Donnelly introduced Ms. Wickline to
[Appellant], referring to him as "Cameron." Ms. Wickline spoke
with him briefly, hearing his voice. During this visit, Mr.
Donnelly had retrieved an AR-15 Colt rifle owned by Mr. Gresh
from Mr. Gresh's upstairs bedroom. Mr. Donnelly showed the
rifle to [Appellant]. Mr. Gresh was not happy that Mr. Donnelly
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was showing off his rifle, and he took the weapon back upstairs
to his room.
Weeks later, and less than one (1) week before the
robbery, [Appellant] and Ms. Newman were at Mr. Gresh's home
a second time while Ms. Wickline was present. Ms. Newman and
[Appellant] unexpectedly presented at Mr. Gresh's home one
evening a few days before the robbery at issue. After the two
(2) couples visited together for some time, Mr. Gresh offered to
drive [Appellant] and his girlfriend home. They accepted the
offer, and Ms. Wickline accompanied them on the drive. After
returning home from the drive, Ms. Wickline noticed that her key
to Mr. Gresh's house, which was located on a key ring placed on
the nightstand next to the bed, was missing.
On January 30, 2012, immediately after the intruders left
Mr. Gresh's home, Ms. Wickline called her boyfriend, Parker
Gresh. During her conversation with Mr. Gresh, Ms. Wickline
told him that "[Appellant] broke into the house." She further
explained by saying, "There were two guys. [Appellant] was one
of them. [Appellant] was here. And they broke in and they took
your gun." As Ms. Wickline was too frantic to call 911, Mr. Gresh
called 911 and told the operator that his home had been robbed,
but he did not identify [Appellant] as one of the perpetrators.
Mr. Gresh ran 2½ miles from his work back to his home, as he
had left his vehicle with Ms. Wickline that night.
After this incident, Ms. Wickline went to a neighbor's home
for safety. She was interviewed by police both the night of the
incident and the following day. During her interviews, she
identified one of her assailants as "Cameron[."] At that time,
she did not know Cameron's [(Appellant’s)] last name. Mr.
Gresh called his cousin to obtain [Appellant]'s last name, and he
was told that it was Russell. Ms. Wickline was shown a photo
array by the McKees Rocks police and immediately identified
[Appellant] as the person who had robbed her the day before.
She described that it took her two (2) seconds to recognize
[Appellant] in the photo array. She participated in a second
photo array and identified the [c]o-[c]efendant, Rodney Grant,
as the man who had held a gun to her head during the robbery.
[Appellant] was apprehended during a traffic stop in
Franklin Park. The [c]o-[d]efendant, Rodney Grant, was driving
the vehicle, and [Appellant] was a passenger. Mr. Grant
consented voluntarily to a search of his vehicle at the time of the
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traffic stop. The stolen Colt rifle was never recovered. However,
when police executed a search warrant on the [c]o-[d]efendant's
home, they recovered a Glock .40 caliber gun, which was similar
to the one described by Ms. Wickline as being used by the
second man when he held her at gun point. It should be noted
that the [c]o-[d]efendant legally owned the registered handgun.
Trial Court Opinion (TCO), 7/17/14, at 2-5 (footnote and internal citations
omitted).
The trial court sentenced Appellant on May 9, 2013, to 54-108 months’
incarceration and a consecutive term of five years’ probation for robbery,
and no further penalty for burglary, RSP, theft by unlawful taking, terroristic
threats, simple assault, and REAP. Appellant filed a timely post-sentence
motion on May 16, 2013, alleging that the verdict was against the weight of
the evidence. The post-sentence motion was denied by the trial court on
June 25, 2013.
On July 25, 2013, Appellant filed a timely notice of appeal. On July
31, 2013, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant filed a timely
request for extension of time on August 30, 2013, which was granted by the
trial court on September 6, 2013. Appellant then filed a timely Rule 1925(b)
statement on September 25, 2013, and the trial court issued its Rule
1925(a) opinion on July 17, 2014.
Appellant now presents the following question for our review: “For a
variety of reasons, were the guilty verdicts in this case contrary to the
weight of the evidence and, thus, must a new trial be awarded so that
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justice may have another opportunity to prevail?” Appellant’s Brief at 6
(unnecessary capitalization omitted).
We review Appellant’s weight-of-the-evidence claim under the
following standard:
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) (internal
citations omitted).
Appellant argues that the victim recognized his voice, and not his face,
during the burglary. Yet, the victim identified Appellant from a photo array
rather than from a voice line-up. Additionally, Appellant contends:
A voice line-up is only one of several important pieces of
evidence missing from the case. In addition, there was no
physical forensic evidence such as fingerprints, fiber traces, or
DNA found that connected Mr. Russell to the crime scene. The
stolen gun was not found in Mr. Russell's possession, and was in
fact never found. If a search was conducted of Mr. Russell's
home to look for the stolen weapon or the clothing that Ms.
Wickline described as being worn by her attackers, there was no
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testimony about it. The Commonwealth did not produce the
masks or hoodies that were allegedly worn on that night. The
sole evidence linking Mr. Russell to the crime was this alleged
voice identification which was never challenged by the
investigating officers.
Appellant’s Brief at 14. Appellant also notes that his co-defendant was
acquitted on all charges despite having also been identified by the victim
from a photo array. Appellant contends that the jury’s “verdict simply
doesn’t make sense in this context.” Id. at 15.1
In rejecting Appellant’s weight-of-the-evidence claim, the trial court
acknowledged the lack of physical evidence in this case, but determined that
the victim’s identification of Appellant was credible enough to justify
Appellant’s conviction. The court stated:
Ms. Wickline testified credibly that she had met and spent time
with [Appellant] on two (2) prior occasions. She further credibly
testified that she immediately recognized [Appellant] as one of
the intruders in Mr. Gresh's home. She stated that she
recognized [Appellant] by his voice, eyes, face and build. She
provided his name to the police as one of the intruders and
immediately identified him in a photo array. Additionally,
[Appellant] called Ms. Wickline by her first name, and when she
asked the second intruder "why Cameron was doing this[,"] he
did not correct her, but instead said she'd have to ask him.
TCO at 6.
We note that although Appellant suggests that his voice was the sole
basis for the victim’s identifying him, the trial court indicates that the victim
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1
Although jointly tried, Appellant and his co-defendant had different
factfinders. Appellant was tried by a jury, whereas his co-defendant elected
for a non-jury trial.
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also recognized some of Appellant’s physical features. Furthermore,
circumstantial evidence supported the victim’s identification of Appellant:
The victim interacted with Appellant on two occasions prior to the
burglary/robbery, Appellant used the victim’s first name during the crime,
and Appellant’s cohort unwittingly revealed that the victim correctly
identified Appellant’s name as being “Cameron” when the victim asked him
why Appellant was “doing this.” Id. The trial court also notes that
“[d]espite a thorough and lengthy cross-examination by [two defense
attorneys], Ms. Wickline never waivered [sic] in her identification of
[Appellant] as one of the intruders….” Id. at 8. Given these facts, we agree
with the trial court that the dearth of physical evidence in this case did not
greatly outweigh the strength of the victim’s identification of Appellant.
Moreover, we disagree with Appellant’s contention that the trial court’s
acquittal of his co-defendant suggests that the jury’s verdict “doesn’t make
sense....” Appellant’s Brief at 15. Generally speaking, it is not at all
shocking, or even unusual, when the identification testimony regarding
different co-defendants differs in quality. Here, the victim’s familiarity with
Appellant provided greater reliability to her identification of him because she
recognized his voice and some of his physical feature from their previous
interactions. However, the victim had no such familiarity with Appellant’s
co-defendant, and Appellant’s co-defendant had four alibi witnesses who, the
trial court indicates, “testified credibly and consistently” that the co-
defendant could not have assisted Appellant on the night of the robbery.
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TCO at 9. The trial court also described the alibi witnesses’ testimony as
“compelling.” Id. Given these circumstances, we do not ascertain an abuse
of discretion in the trial court’s rejecting Appellant’s weight-of-the-evidence
claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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