Com. v. White, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAWAYNE WHITE
Appellant No. 1040 EDA 2015
Appeal from the Judgment of Sentence November 20, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005005-2014
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 06, 2016
Jawayne White appeals from the November 20, 2014 judgment of
sentence entered in the Philadelphia County Court of Common Pleas
following his bench trial convictions for robbery (inflicts bodily injury),
recklessly endangering another person (“REAP”), simple assault, criminal
conspiracy, theft by unlawful taking, and receiving stolen property.1 We
conclude that the record as it comes to us does not contain sufficient
evidence to support the conspiracy conviction and, therefore, vacate White’s
conspiracy conviction. We affirm the judgment of sentence as to the
remaining convictions.
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1
18 Pa.C.S. §§ 3701(a)(1)(iv), 2705, 2701(a), 903(c), 3921(a),
3925(a), respectively.
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The facts, as adopted by the trial court, are as follows:2
On September 9, 2014, this matter was tried before this
Court. . . . .
[T]he complainant[] testified that on the evening of March
12, 2014 at approximately 7:55 pm, he was on the
northeast corner of North Marshall Street and Cecil B.
Moore Avenue. At that time he had a cell phone in his
hand and was using it to listen to music. Complainant
then came in contact with [White], who he did not know.
[White] was identified in the courtroom by [the
complainant]. [White] had approached him from behind
on the night in question. [White] asked [the complainant]
“what kind of phone you got?” [White] then struck the
complainant while standing in front of him and the
complainant then put his phone in his pocket. Then
[White] reached in the complainant’s pocket and took his
phone.
The police came to the scene and told the complainant to
go and get his father and come back. After returning, the
complainant was taken to the hospital and seen in the
emergency room. He missed two (2) weeks from school.
Complainant [was] subsequently seen three times by a
doctor. The phone that was taken cost approximately
$100-$120. He never received the phone back.
On cross-examination, the complainant testified that
[White] approached him. He did not have scratches on his
fist (and was then shown D-1, which was a photo of his
fist) nor did [he] attempt to track his phone down. On
redirect, the complainant said that he did not activate his
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2
Because the audio recording of the trial was of poor quality, a
transcript could not be produced. Accordingly, pursuant to Pennsylvania
Rule of Appellate Procedure 1923, White filed a statement in absence of
transcript. The Commonwealth as appellee did not afford itself of the
opportunity provided by Rule 1923 to “serve objections or propose
amendments” to White’s statement. The trial court adopted in part and
amended White’s statement. Trial Ct. Statement in Absence of Transcript
Pursuant to Pa.R.A.P. 1923, 10/30/2015, at 1 (“Rule 1923 Stmt.”)
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phone’s tracking ability since he only owned [the] phone
for one day. Complainant was then shown D-2, the notes
of testimony from the Preliminary Hearing where he said
he had the phone for 1 month.
Philadelphia Police Officer Justin Rios of the 22nd precinct
was then called to the stand to testify as a Commonwealth
witness. Officer Rios testified that he remembered the
date of March 12, 2014, and that he was driving in the
area on the way to work. He observed the complainant
with another male on the corner of Cecil B. Moore Avenue
and Marshall Street. He observed [White] standing in front
of the complainant and yelling at the complainant. He
then observed [White] run toward the complainant with
closed fist and strike him in the face.
Officer Rios pulled over and broke up the altercation. He
observed the complainant with a bloody and crooked nose.
The complainant walked in Officer Rios’ direction and
[White] and his co-defendant followed. Officer Rios
testified that he asked the complainant what had
happened and the complainant responded that [White] hit
him. Officer Rios then detained [White] by grabbing him
by the pants.
Another police officer, who also happened to be on his way
to work, stopped to lend assistance. After [White] was
placed in handcuffs, the complainant went home to get his
father. Some friends of [White] also came to the scene.
Officer Rios told the complainant to go with the medics.
Seven to ten people were at the scene at the time of the
incident. On cross-examination, Officer Rios testified that
his badge was not visible at the time. At the time of this
arrest, he had been an officer for 7 years.
Philadelphia Police Officer Brooke Seiberlich was the last
witness to testify. He testified that he was on his way to
work when he observed Officer Rios with [White]. He
exited his vehicle and was informed that [White] assaulted
the complainant. Officer Seiberlich then frisked [White]
and placed him under arrest. This officer then took
[White] away from the scene. [White] moved D-1 and D-2
into evidence without objection.
Rule 1923 Stmt. at 1-3.
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Following a bench trial, the court convicted White of robbery, REAP,
simple assault, conspiracy, theft by unlawful taking, and receiving stolen
property. On November 20, 2014, the trial court sentenced White to
concurrent sentences of 2 to 4 years’ incarceration followed by 2 years’
probation for the robbery and conspiracy convictions. The trial court
imposed no further penalty for the remaining convictions. On November 30,
2014, White filed a post-sentence motion alleging the verdict was against
the weight of the evidence. On March 31, 2015, the motion was denied by
operation of law.
On April 10, 2015, White filed a notice of appeal. On April 14, 2015,
the trial court issued an order requiring White to file a statement of matters
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) within 21 days of receiving the transcripts from the
November 20, 2014 hearing. On August 24, 2015, White filed a statement
in absence of transcript pursuant to Pennsylvania Rule of Appellate
Procedure 1923. White explained that the reporter was preparing the
transcript of the sentencing hearing, but that the digital transcript manager
informed counsel there was a problem with the audio recording of the bench
trial, which prevented her from producing the trial transcripts. White,
therefore, submitted a statement of the record derived from the case docket
and counsel’s recollection of the trial.
On September 15, 2015, the trial court ordered White to file a Rule
1925(b) statement within 21 days. On October 5, 2015, White filed a Rule
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1925(b) statement, alleging that there was insufficient evidence to sustain
the robbery conviction and that the guilty verdict for the robbery conviction
was against the weight of the evidence. White also sought an extension of
time to file a supplemental Rule 1925(b) statement upon receipt of all notes
of testimony. On October 3, 2015, the trial court issued its Rule 1923
statement, which included the following introductory paragraph:
[P]ursuant to Pa.R.Crim.P. 1923, based upon a review of
[White’s] proposed Rule 1923 Statement, and no
response, objection or amendment from the
Commonwealth, this Court hereby adopts, in part,
[White’s] Statement and has amended the same with this
Court’s trial notes and recollection. This Statement shall
be made a part of the record on appeal.
Rule 1923 Stmt. at 1.3 Also on October 30, 2015, the trial court ordered
that White file a revised Rule 1925(b) statement within 21 days. On
November 9, 2015, White filed a supplemental Rule 1925(b) statement,
alleging that: (1) the evidence was insufficient to sustain the robbery
conviction because the Commonwealth failed to establish a theft occurred;
(2) the evidence was insufficient to establish the conspiracy conviction; and
(3) the verdict for the robbery conviction was against the weight of the
evidence. On January 29, 2016, the trial court issued its Rule 1925(a)
opinion.
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3
The Commonwealth did not respond or object to the statement in
absence of the transcript filed by White or the statement filed by the trial
court.
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White raises the following issues on appeal:
1. Was not the verdict as to robbery so contrary to the
weight of the evidence as to render it unjust, where the
testimony of the complainant regarding the theft of his
phone was unreasonably tenuous and belied by the lack of
physical evidence?
2. Was not the evidence insufficient to sustain a conviction
for robbery, theft, and receiving stolen property, where the
evidence was insufficient to prove that a theft or an
attempted theft had occurred?
3. Was not the evidence insufficient to sustain a conviction
for conspiracy, where the evidence was insufficient to
prove the existence of any conspiratorial agreement with
another?
White’s Br. at 3.
Before we address the merits of White’s claims, we must first
determine the materials in the record that this Court may consider in
reaching our determination. The Commonwealth contends that we may
consider not only the trial court’s Rule 1923 Statement, but also White’s
Rule 1923 Statement, and the notes of testimony from the preliminary
hearing, which, it argues, were admitted into evidence at trial.
Commonwealth’s Br. at 2 n.1.
Rule 1923 provides:
If no report of the evidence or proceedings at a hearing or
trial was made, or if a transcript is unavailable, the
appellant may prepare a statement of the evidence or
proceedings from the best available means, including his
recollection. The statement shall be served on the
appellee, who may serve objections or propose
amendments thereto within ten days after service.
Thereupon the statement and any objections or proposed
amendments shall be submitted to the lower court for
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settlement and approval and as settled and approved shall
be included by the clerk of the lower court in the record on
appeal.
Pa.R.A.P. 1923.4
The only statement this Court may consider is the statement that the
trial court “settled and approved” and ordered that the clerk include in the
record.5 See Pa.R.A.P. 1923. Therefore, we may not consider White’s Rule
1923 Statement. Further, this Court may not consider the preliminary
hearing transcript. Although the trial court’s Rule 1923 Statement states
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4
This Court has stated the following regarding when a new trial is
appropriate due to the lack of transcripts:
Where meaningful review is impossible and appellant is
free from fault, a new trial may be granted. Meaningful
review does not require, per se, a complete trial transcript.
Rather, the court may provide either a complete trial
transcript or an equivalent thereof. Rule 1923 does not
contemplate that appellate counsel must single-handedly
reconstruct the record. The theory that underlies Rule
1923 is that a verbatim transcript of proceedings is not
necessarily a condition precedent to meaningful appellate
review, so long as the appellate court has an “equivalent
picture” of what happened at trial. Further, no relief is due
because counsel on appeal was not counsel at trial.
Rather, appellate counsel is required to prepare a
statement of the missing evidence from the best available
means.
Commonwealth v. Harvey, 32 A.3d 717, 721-22 (Pa.Super. 2011)
(citations and internal quotation marks omitted).
5
In its Rule 1925(a) opinion, the trial court stated that it
supplemented White’s Rule 1923 statement with its own notes because
White’s “suggested statement lacked significant facts and testimony elicited
at trial.” 1925(a) Op. at 2.
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that White moved for the admission of the preliminary hearing transcript
without objection, the Rule 1923 statement refers only to the part of the
transcript used to establish that the victim gave prior inconsistent
testimony.6 The Commonwealth suggests that we may consider all
statements made at the preliminary hearing, regardless whether the
statements are consistent with trial testimony or whether the information
was admitted at trial. We disagree. The Commonwealth has not established
that the preliminary hearing testimony was admitted as substantive
evidence at trial pursuant to any exception to the rule excluding hearsay.
See Pa.R.E. 803, 804. Accordingly, we will not consider the preliminary
hearing testimony on appeal.
We will first address White’s claims that the Commonwealth failed to
present sufficient evidence to support his convictions. We apply the
following standard when reviewing a sufficiency of the evidence claim:
“[W]hether 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.”
Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003), aff’d,
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6
The trial court noted that the victim testified at trial that he had
owned the phone for only one day at the time of the robbery, and White’s
counsel showed the victim his testimony from the preliminary hearing, in
which he stated that he had had the phone for one month. Rule 1923 Stmt.
at 2.
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870 A.2d 818 (Pa. 2005) (quoting Commonwealth v. DiStefano, 782 A.2d
574 (Pa.Super. 2001)). In applying this standard, “we may not weigh the
evidence and substitute our judgment for the fact-finder.” Id.Further, “the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.” Lehman,
820 A.2d at 772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny
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.” Id.“The Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence.” Id.In applying the above test, we must evaluate the entire record.
DiStefano, 782 A.2d at 582. Further, “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.” Id.White claims that the evidence was insufficient to sustain the
convictions for robbery, theft, and receiving stolen property because the
Commonwealth failed to establish that he took, attempted to take, or
otherwise exercised control over the victim’s cell phone. White’s Br. at 15.
To establish White was guilty of robbery, the Commonwealth was
required to establish that: “in the course of committing a theft, he . . .
inflict[ed] bodily injury upon another or threaten[ed] another with or
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intentionally put[] him in fear of immediate bodily injury.” 18 Pa.C.S. §
3701(a)(iv). “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). A person commits the crime of
“theft by unlawful taking” if he “unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him
thereof.” 18 Pa.C.S. § 3921(a). To establish a person received stolen
property, the Commonwealth must establish that the person “intentionally
receives, retains, or disposes of movable property of another knowing that it
has been stolen, or believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to restore it to the
owner.” 18 Pa.C.S. § 3925(a). “Receiving” is defined as “acquiring
possession, control or title, or lending on the security of the property.” 18
Pa.C.S. § 3925(b).
White argues that the Commonwealth failed to establish that he took
the victim’s phone. He notes that the police arrested him at the crime
scene, and the phone was never recovered. He also claims the victim’s
testimony was unreliable because it was contradicted by the physical facts.
White’s Br. at 15.
Viewing the record in the light most favorable to the Commonwealth
as the verdict winner, we conclude the Commonwealth presented sufficient
evidence to establish, beyond a reasonable doubt, that White took the
victim’s phone. The victim testified that he was listening to music on his cell
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phone when White approached him from behind, asked “what kind of phone
you got?,” and then struck him. Rule 1923 Stmt. at 1-2. The victim
testified that he then placed his phone in his pocket, and that White then
reached into the pocket and removed the phone. Id. at 2. Although the cell
phone was not recovered, the victim’s testimony provided sufficient evidence
from which a fact-finder could conclude, beyond a reasonable doubt, that
White took the victim’s cell phone.
White next argues that the Commonwealth failed to provide sufficient
evidence to support the conspiracy conviction. Although White raised this
claim in his supplemental Rule 1925(b) statement, the trial court’s Rule
1925(a) opinion does not address it.7 Based on the evidence in the trial
court’s Rule 1923 statement, we agree with White.
Criminal conspiracy is defined as follows:
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:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
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7
Although the trial court permitted White to file a supplemental Rule
1925(b) statement following the court’s filing if its Rule 1923 Statement, the
court’s Rule 1925(a) opinion addressed only the issues raised in White’s
original Rule 1925(b) statement. The trial court, therefore, did not address
White’s allegation that the evidence was insufficient to support his
conspiracy conviction, which White raised for the first time in his
supplemental Rule 1925(b) statement.
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(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903. This Court has stated that:
[c]ircumstantial evidence may provide proof of the
conspiracy. 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.
Commonwealth v. Irvin, 134 A.3d 67, 75 (Pa.Super. 2016) (quoting
Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)). Further,
[a]n agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.
Id. (quoting Perez, 931 A.2d at 708).
In the trial court’s Rule 1923 Statement, the only references to
possible co-conspirators are that, after the theft, “the defendant and his co-
defendant” followed the victim when he walked over to speak with the officer
who had arrived on the scene, and that “[s]ome friends of the defendant
also came to the scene.” Rule 1923 Stmt. at 2-3. This is insufficient to
establish, beyond a reasonable doubt, that any agreement existed between
White and another person.8 We therefore vacate the conspiracy conviction.
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8
White’s Rule 1923 Statement included additional information
regarding a potential conspiracy, including that: (1) the victim testified that
(Footnote Continued Next Page)
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White also claims that the verdict of guilty for the robbery conviction
was against the weight of the evidence.
This court reviews a weight of the evidence claim for an abuse of
discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “One
of the least assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest of
justice.” Id. (quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa.
2000)). “Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against the weight
of the evidence.” Id.A trial court should not grant a motion for a new trial “because of a
mere conflict in the testimony or because the judge on the same facts would
have arrived at a different conclusion.” Clay, 64 A.3d at 1055. “Rather,
_______________________
(Footnote Continued)
White and another male approached him; and (2) Officer Rios testified he
saw the victim, White, and White’s co-defendant on the corner, saw White
and his-co-defendant yell at the victim, and observed White lunge at the
victim. In partially adopting White’s Rule 1923 statement, the trial court
only included that Officer Rios testified that when the victim walked toward
him, White and his co-defendant followed. The trial court, however, did not
include the other references to the co-defendant. As a result, and because
the trial court did not address this sufficiency claim in its Rule 1925(a)
opinion, this Court cannot safely conclude that the trial court viewed these
facts as established at trial.
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‘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.’” Id. (quoting
Widmer, 744 A.2d at 752). Courts have stated that “a new trial should be
awarded 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.” Id. (quoting
Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).
White claims the verdict was against the weight of the evidence
because the victim’s testimony that White stole his phone was not credible,
noting the officers did not see White take the phone, White did not leave the
scene prior to his arrest, and the phone was not recovered. White’s Br. at
10-13. However, the trial court as finder of fact was free to credit the
victim’s testimony. See Commonwealth v. Page, 59 A.3d 1118, 1130
(Pa.Super. 2013) (credibility determination “lies solely within the province of
the factfinder”); Commonwealth v. DeJesus, 860 A.2d 102, 107
(Pa.Super. 2004) (“The weight of the evidence is exclusively for the finder of
fact, which is free to believe all, part, or none of the evidence, and to assess
the credibility of the witnesses.”). The trial court did not abuse its discretion
when it found the verdict was not against the weight of the evidence.
Accordingly, we conclude that the Commonwealth presented sufficient
evidence to convict White of robbery, theft, and receiving stolen property
and that the trial court did not abuse its discretion when it found the verdict
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for robbery was not against the weight of the evidence. However, we
conclude that the record as established by the trial court does not reflect
that the Commonwealth presented sufficient evidence to support the
conspiracy conviction. Because the trial court imposed concurrent sentences
for robbery and conspiracy, vacating the judgment of sentence for
conspiracy does not affect the overall sentencing scheme, and remand is not
necessary. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69
(Pa.Super. 2010) (finding remand not required when vacating judgment of
sentence would not disturb the overall sentencing scheme).
Judgment of sentence for conspiracy vacated. Judgment of sentence
affirmed as to the convictions for robbery, REAP, simple assault, theft by
unlawful taking, and receiving stolen property.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2016
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