Com. v. Miller, R. ( 2015 )

J-S40036-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT MILLER, :
:
Appellant : No. 238 WDA 2015
Appeal from the Judgment of Sentence Entered January 12, 2015,
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0000398-2014
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 29, 2015
Robert Miller (Appellant) appeals from the judgment of sentence of
seven to fifteen years’ incarceration after a jury convicted him of five counts
of robbery; four counts each of terroristic threats and recklessly endangering
another person (REAP); and one count each of theft by unlawful taking and
aggravated assault. We affirm.
The trial court summarized the testimony from Appellant’s jury trial as
follows.
On January 13, 2014, Stephanie Kendall was working at
the Footedale [M]arket with co-worker, Samantha Guseman, and
owner, Janet Shaffer, when at approximately 8:50 p.m.
Appellant walked into the store with a bandana on his face and a
gun pointed at the workers. Appellant approached the counter
and instructed Kendall and Guseman not to run, but they ran to
the back of the store nonetheless. Appellant jumped over the
counter to follow them while pointing the gun and demanding
money. Guseman began yelling for help from Janet Shaffer and
Appellant took off in [her] direction. Although out of her sight,
*Retired Senior Judge assigned to the Superior Court.
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Kendall could hear an argument and then a gunshot. Kendall
noted that money was missing from the lottery drawer and that
the drawer, which had been closed prior to Appellant entering
the store, was open. Kendall identified Appellant by a physical
description that included his eyes, height, weight, gender, and
voice.
Samantha Guseman confirmed that just prior to the 9:00
p.m. closing time, Appellant entered the Footedale Market,
cocked his gun, and told her and Kendall not to run. No
customers were in the store, but Janet Shaffer and her children
were in the office and James Fisher, Jr. (“Jim”) was in the
attached apartment. While Appellant was three to four feet
away and pointing the gun straight at her, Guseman summoned
for Shaffer by yelling her name three or four times. Appellant
kept asking where “she” was, referring to Shaffer, but Guseman
would not answer him. Appellant left in Shaffer’s direction and
shortly thereafter Guseman heard a gunshot. Then, Guseman
heard Appellant running through the store and the lottery drawer
open. Guseman confirmed on the television monitor that
Appellant had left the store and proceed[ed] to check on Jim
who she had heard say that he “got hit.” Guseman found Jim
crouched over with blood on the floor and asked if they “knew
the Miller boys.” Guseman recognized the identity of Appellant
by his voice when she confirmed that they grew up on the same
street, had the same circle of friends, and stated, “[Y]ou don’t
forget somebody you’ve known your whole life.” With regards to
his features, Guseman testified that only Appellant’s eyes and
forehead were visible that night, but that his eyes are
recognizable from the “piercing like bluish color.”
Janet Shaffer is the owner of the Footedale Market and
was in the office of the store on the evening of January 13,
2014, when she heard Guseman and Kendall yelling for her. As
Shaffer stood up, Appellant met her in the doorway to the office
demanding money. Shaffer refused to give him money and she
felt something touch her in the nose, but could not identify it as
either Appellant’s hand or the gun he was carrying. Appellant
continued to demand money in a violent and loud manner, and
Shaffer began yelling for her boyfriend Jim, who was located
directly behind the office wall in the adjoining apartment. Jim
entered the office through the apartment doorway and Appellant
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started yelling to “back the ‘F’ up, Jim, back up Jim.” Jim
slammed Shaffer back into the office portion and closed the
door. From the other side of the door, Shaffer could hear Jim
saying that he was shot. Shaffer was unable to provide an exact
amount of money stolen from the lottery drawer because she
had not counted it for the evening prior to Appellant entering the
store, but she was able to estimate the amount to be between
$60.00 and $100.00. Shaffer stated that she has known
Appellant throughout his entire life and that she recognized his
voice and eyes.
[Jim] testified that he was at the apartment adjacent to
the Footedale Market on the evening of January 13, 2014, when
he heard a commotion from the workers and Shaffer yelling for
him. When Jim entered into the office, he saw Appellant
pointing a gun at Shaffer and then turning towards him, stating
“Back up, the gun’s loaded, I ain’t playin.” The rag on
Appellant’s face was drooping down and Jim immediately
recognized the identity of Appellant, stating that he knew
Appellant “since he was born.” Jim was able to slam a door shut
between Appellant and Shaffer and he attempted to jump back
into the apartment when Appellant fired the gun hitting Jim with
a bullet through the kneecap. With regards to medical
treatment, Jim had a plate put in his leg because he was shot
through the joint where his knee bends and anticipates a knee
replacement in the future. Jim explained that the bullet “blew
[his] femur” and “destroyed [his] knee.”
Trooper James A. Pierce of the Pennsylvania State Police, a
criminal investigator, recovered a bullet between the hallway and
the front of the store.
At trial, Appellant presented the testimony of Natalie Sykes
in his defense. Sykes testified that she and Appellant were on-
and-off boyfriend and girlfriend, and that he spent the entirety of
the day at her house, except for a trip to the gas station and
drug store around five o’clock in the afternoon. Sykes testified
that the car used to go on the errands at five o’clock belonged to
Appellant’s mother and that when Appellant returned to Sykes’s
house, Appellant’s mother took the car, leaving him and Sykes
without a vehicle. According to Sykes, the distance from her
home to Footedale Market is fifteen minutes by car and Appellant
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did not leave until after nine o’clock when Sykes told him to
leave to avoid the police.
Trial Court Opinion, 3/31/2015, at 2-6 (citations omitted).
Appellant was arrested and charged with the aforementioned offenses
in connection with this incident. A jury trial was held on December 8 and 9,
2014, and the jury returned a verdict of guilty on all charges. Appellant was
sentenced to seven to fifteen years’ incarceration on January 12, 2015. No
post-sentence motions were filed. Appellant filed timely a notice of appeal,
and both Appellant and the trial court complied with Pa.R.A.P. 1925.
We consider Appellant’s first two issues on appeal together. In his first
issue, Appellant argues that “the evidence presented by the Commonwealth
was against the weight of the evidence.” Appellant’s Brief at 12. Throughout
the entire argument section; however, Appellant cites repeatedly to the
standard for a claim challenging the sufficiency of the evidence. Id. at 12-
20. Appellant’s second issue on appeal purports to challenge the sufficiency
of the evidence. Id. at 21-22. Whether considering Appellant’s arguments
as challenging the weight of the evidence or the sufficiency of the evidence,
Appellant is not entitled to relief.
“[A] weight of the evidence claim must be preserved either in a post-
sentence motion, by a written motion before sentencing, or orally prior to
sentencing. Failure to properly preserve the claim will result in waiver[.]”
Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013). Instantly,
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Appellant did not file a post-sentence motion, a written motion before
sentencing, or object orally prior to sentencing. Accordingly, any issue
challenging the weight of the evidence has been waived.
We consider next Appellant’s challenges to the sufficiency of the
evidence. We can discern only two claims from the argument section of his
brief. First, Appellant argues that he did not inflict “serious bodily injury.”
Appellant’s Brief at 19. Also, Appellant asserts that the eyewitness
testimony was inconsistent and unreliable, and therefore, the
Commonwealth did not prove beyond a reasonable doubt that it was
Appellant who committed the crime. Id. at 16-19, 21-22.
In considering these claims, we keep in mind our well-settled standard
of review.
The standard we apply in reviewing the sufficiency of the
evidence is whether 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. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of witnesses
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and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Further, in viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal
quotation marks and citations omitted).
Before we address Appellant’s claim that he did not inflict serious
bodily injury, we consider whether it was preserved for our review.
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
citation and quotations omitted).
Serious bodily injury is an element of both robbery and aggravated
assault. Appellant was convicted of five counts of robbery, including counts
for actually inflicting serious bodily injury1 and threatening to inflict serious
1
18 Pa.C.S. § 3701(a)(1)(iv).
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bodily injury.2 Appellant was also convicted of aggravated assault for
causing serious bodily injury with a weapon.3
Appellant’s Pa.R.A.P. 1925(b) statement, related to robbery, states as
follows: “The evidence did not show that Appellant was the individual that
committed the crime of robbery in the eyewitness testimony was unreliable,
and no physical evidence pointed to Appellant[.]” CONCISE ISSUE,
2/19/2015, at 1. Appellant does not mention his aggravated assault
conviction in his concise statement. Because Appellant did not state
specifically that he was contesting the serious bodily injury element of the
aforementioned crimes in his concise statement, he has not preserved this
issue for our review.4
We now consider Appellant’s various arguments that the
Commonwealth did not produce enough evidence to prove that it was
Appellant who perpetrated the crimes. Appellant argues that the
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
18 Pa.C.S. § 2702(a)(4).
4
Regardless, Appellant’s argument is puzzling. Serious bodily injury is
defined as “[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” 18 Pa.C.S. § 2301.
Instantly, Appellant shot Jim in the leg, which “blew out [his] femur,” and
required him to have surgery to repair the damage. N.T., 12/8-9/2014, at
63. Jim further testified that he underwent therapy to regain use of that leg
and that he may have to have a total knee replacement in the future. Id.
Clearly, this testimony, if believed by the jury, satisfies even the most
conservative definition of serious bodily injury.
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Commonwealth failed to produce “the alleged weapon used at the scene of
the crime (specifically an alleged gun)” and the sweatshirt worn by the
perpetrator. Appellant’s Brief at 17, 18. Appellant further argues that the
eyewitness identifications were unreliable because 1) the eyewitnesses
testified that Appellant’s eyes were blue, when Appellant’s eyes are actually
green; and, 2) the eyewitnesses placed the gun in Appellant’s right hand,
even though Appellant was left-handed. Id. at 21-22.
We understand that “courts of this jurisdiction have recognized that
where evidence offered to support a verdict of guilt is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, a jury
may not be permitted to return such a finding.” Commonwealth v.
Farquharson, 354 A.2d 545, 550 (Pa. 1976). However, the standard
announced in Farquharson “applies only in such cases where the patent
unreliability of the testimony is such as to render a verdict of guilt based
thereupon as no more than pure conjecture.” Commonwealth v. Hudson,
414 A.2d 1381, 1385 (Pa. 1980) (quotations omitted).
Instantly, the Commonwealth presented testimony of three witnesses,
all of whom identified Appellant as the perpetrator of the crime.
First, Samantha Guseman who recognized the identity of
Appellant by his voice and explained she was familiar with
Appellant because they grew upon the same street, had the
same circle of friends, and recognized Appellant’s distinctive
eyes. Next, the testimony of Janet Shaffer who knew Appellant
through his entire lifetime, Appellant was a customer of her
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store, and that she recognized his voice and eyes. Lastly, the
testimony of [Jim] who testified that he knew Appellant “since he
was born” and that the bandana covering Appellant’s face had
drooped down enough to identify him. Further Appellant spoke
to [Jim] by name, telling him to “back the ‘F’ up, Jim, back up
Jim.”
Trial Court Opinion, 3/31/2015, at 10 (citations to notes of testimony
omitted).
Based on this testimony, viewed in the light most favorable to the
Commonwealth as the verdict winner, we cannot agree that the evidence
was as unreliable and speculative as claimed by Appellant. These witnesses
lived in a small town where Appellant was known to them. They recognized
his voice, as well as other features. Such testimony, if believed by the jury,
was sufficient to identify Appellant as the perpetrator. See, e.g.,
Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super. 2006) (“We
may not weigh the evidence or substitute our judgment for that of the fact-
finder. … When evaluating the credibility and weight of the evidence, the
fact-finder is free to believe all, part, or none of the evidence.”).
Accordingly, Appellant is not entitled to relief on this basis.
Appellant next contends the trial court erred with respect to one of its
jury instructions. Appellant’s Brief at 23-24.5 However, “[t]rial counsel’s
5
Appellant cites to the jury instruction regarding the testimony of Natalie
Sykes, the alibi witness, which reads as follows:
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failure to object to the jury instruction is fatal to Appellant’s claim that the
trial court erred in its charge to the jury.” Commonwealth v. Garang, 9
A.3d 237, 245 (Pa. Super. 2010). Thus, because counsel did not object to
this jury instruction, Appellant waived his challenge thereto, and Appellant is
not entitled to relief on this basis.
Finally, “Appellant contends that the Commonwealth did not rebut his
alibi witness’[s] testimony.” Appellant’s Brief at 25. Specifically, Appellant
argues that the Commonwealth did not rebut Natalie Sykes’ testimony that
she was with Appellant “the entire night in question.” Id. Appellant argues
that “[s]imply relying on the misidentification of [the] Commonwealth
witnesses does not rebut the alibi defense.” Id.[T]he Commonwealth is not required to rebut every
specific piece of evidence introduced under an alibi defense. …
The jury was not required to believe appellant’s alibi witness….
The jury can believe all, some or none of the testimony of any
witness[.] The burden of the Commonwealth is to present
evidence that the defendant was present at the scene of the
crimes charged. This it did with sufficiency to prove appellant’s
presence beyond a reasonable doubt. The fact that the jury
In this case Natalie Sykes took the stand and you heard that she
had been convicted of a crime: Hindering Apprehension or
Concealment. The only purpose for which you may consider this
evidence of prior conviction is to decide whether or not to
believe all or part of Natalie Sykes’ testimony. In doing so you
may consider the type of crime committed, how long ago it was
committed and how it may affect the likelihood that Natalie
Sykes has testified truthfully in this case.
N.T., 12/8-9/2014, at 104.
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chose to believe the Commonwealth’s evidence and disbelieve
appellant’s alibi defense is certainly not grounds for reversal.
Commonwealth v. Walker, 365 A.2d 1279, 1281 (Pa. Super. 1976)
(citations omitted).
Instantly, the Commonwealth presented three eyewitnesses who
identified Appellant as the perpetrator of the crimes. The jury could have
believed all or part of this testimony, or disbelieved the testimony of the alibi
witness, to reach its verdict. As such, Appellant is not entitled to reversal on
this basis.
Appellant has not presented any issue worth of relief. Accordingly, we
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
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