Com. v. Davis, T., Jr. ( 2018 )

J-S49005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE JOB DAVIS, JR. :
:
Appellant : No. 1973 MDA 2017
Appeal from the Judgment of Sentence August 28, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006256-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 21, 2018
Terrance Job Davis, Jr. (“Appellant”) appeals from the judgment of
sentence entered on August 28, 2017, in the Court of Common Pleas of York
County. We affirm.
This case arose from Appellant’s involvement in the robbery of Timothy
Laniewski (the “Victim”), with two co-defendants on August 3, 2016. A jury
convicted Appellant on July 11, 2017, of criminal conspiracy to commit
robbery, robbery by threatening serious bodily injury, robbery by threatening
immediate bodily injury, theft by unlawful taking, and receiving stolen
property.1 The trial court sentenced Appellant on August 28, 2017, to
incarceration for an aggregate term of five to ten years. Appellant filed a
____________________________________________
1 18 Pa.C.S. §§ 903(a)(1), 3701(a)(1)(ii), 3701(a)(1)(iv), 3921(a), and
3925(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S49005-18
timely post-sentence motion, which the trial court denied. This appeal
followed. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our review:
1. Whether there was insufficient evidence presented by the
Commonwealth at trial to prove beyond a reasonable doubt that
[Appellant] conspired with [his] co-defendants to commit the
crime of Robbery.
2. Whether there was insufficient evidence presented by the
Commonwealth at trial to prove beyond a reasonable doubt that
[Appellant] committed Theft by Unlawful Taking.
3. Whether there was insufficient evidence presented by the
Commonwealth at trial to prove beyond a reasonable doubt that
[Appellant] committed Receiving Stolen Property.
4. Whether there was insufficient evidence presented by the
Commonwealth at trial to prove beyond a reasonable doubt that
[Appellant] committed Robbery by threat of immediate serious
bodily injury.
5. Whether there was insufficient evidence presented by the
Commonwealth at trial to prove beyond a reasonable doubt that
[Appellant] committed Robbery by threat of immediate bodily
injury.
6. Whether the verdict of the jury was against the weight of
the evidence where the jury’s verdict could not have been based
on the facts presented, but mere speculation and conjecture.
Appellant’s Brief at 4.
In reviewing Appellant’s brief, we note that Appellant has failed to
comply with Pa.R.A.P. 2119(a). That rule provides:
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part—
in distinctive type or in type distinctively displayed—the particular
point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
-2-
J-S49005-18
Pa.R.A.P. 2119(a). Moreover, we have explained, “The failure to develop an
adequate argument in an appellate brief may result in waiver of the claim
under Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140
(Pa. Super. 2008).
Here, Appellant’s two-page argument is not divided into parts that
correspond with the issues he presents, and his argument consists merely of
bald assertions and citations to authority without analysis. Appellant has not
developed adequate arguments explaining how the evidence was insufficient
to sustain the verdicts of conspiracy, robbery, theft by unlawful taking,
receiving stolen property, and he has not adequately analyzed how the weight
of the evidence was contrary to the verdict. Nor has Appellant included
citations to the record in support of any such arguments. We shall not develop
an argument for Appellant, nor shall we scour the record to find evidence to
support it. Beshore, 916 A.2d at 1140. Consequently, we could deem
Appellant’s sufficiency and weight challenges waived. Id.
However, we observe that the trial court’s Pa.R.A.P. 1925(a) opinion
incorporates its exhaustive analysis and rationale from its well-reasoned
memorandum order denying Appellant’s post-sentence motions. Trial Court
Opinion, 3/2/18, at 2–5; Trial Court Memorandum Order, 11/29/17, at 1–11.
After review, we are satisfied that those decisions thoroughly address and
correctly dispose of Appellant’s issues on appeal. Accordingly, we affirm the
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J-S49005-18
judgment of sentence on the basis of the trial court’s Rule 1925(a) opinion
and incorporated memorandum opinion.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/21/2018
____________________________________________
2 The parties are directed to attach a copy of the trial court’s March 2, 2018
opinion and November 29, 2017 memorandum order in the event of further
proceedings in this matter.
-4-
Circulated 08/20/2018 11 :16 AM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY1 PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA NO. CP-67-CR-6256-2016
v.
TERRANCE DAVIS, JR.,
Defendant
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TRIAL COURT'S 1925(a) STATEMENT
Defendant has appealed to the Superior Court from the Trial Court's order
imposing sentence entered on August 28, 2017, and the Order Denying Post-Sentence
Motion entered on November 29, 2017.
The Trial Court issued a directive to Defendant on December 28, 2017, to file a
Statement of Errors Complained of on Appeal (hereinafter "Statement") pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b ). Due to a conflict, Attorney John
Hamme was permitted to withdraw and Attorney Heather Reiner was appointed to
represent Defendant on January 4, 2018. Defendant's Statement was filed on February
26, 2018.
This 1925(a) Statement is submitted as a supplement to the record and the Trial
Court's orders of August 28, 2017 and November 29, 2017.
SUFFICIENCY OF THE EVIDENCE-STANDARD
"In reviewing the sufficiency of the evidence, we examine whether the evidence
admitted at trial, and all reasonable inferences drawn therefrom, viewed in a light most
favorable to the Commonwealth as verdict winner, support the jury's finding of all the
elements of the offense beyond a reasonable doubt. Commonwealth v. Montalvo, 598
Pa. 263, 956 A.2d 926 (2008). "In applying this standard, [] the Commonwealth may
sustain its burden by means of wholly circumstantial evidence." Id.
SUFFICIENCY - CONSPIRACY TO COMMIT ROBBERY
Defendant contends in his complaint 1(a) that "[t]here was insufficient evidence to
prove beyond a reasonable doubt that the Defendant conspired with his co-defendants,
Balijah Davis and Miquan Johnson, to commit the crime of Robbery, as charged in Count
1 of the Criminal Information." This complaint was addressed by the Trial Court in the
Trial Court's "Memorandum Order Denying Defendant's Post-Sentence Motion"
(hereinafter "Memorandum"), a copy of which is scanned with this 1925(a) Statement.
As a result, the Trial Court refers the Superior Court to the Trial Court's Memorandum,
11/29/17, pages 2-7.
SUFFICIENCY-THEFT BY UNLAWFUL TAKING
Defendant contends in his complaint 1 (b) that "[t]here was insufficient evidence to
prove beyond a reasonable doubt that the Defendant committed theft by unlawfully taking
movable property from Timothy Laniewski with the intent to deprive him of said property."
2
The evidence presented at trial was sufficient to find Defendant guilty of Robbery. Ergo,
that evidence was also sufficient to find Defendant guilty of Theft by Unlawful Taking.
Therefore, this contention is without merit.
SUFFICIENCY - RECEIVING STOLEN PROPERTY
Defendant contends in his complaint 1 (c) that "[t]here was insufficient evidence to
prove beyond a reasonable doubt that the Defendant intentionally received, retained, or
disposed of Timothy Laniewski's movable property knowing that the property was stolen."
While Defendant makes no specific argument regarding this complaint, the
evidence in this case is sufficient to support the conviction for Receiving Stolen Property.
The evidence presented at trial proved beyond a reasonable doubt that Defendant
conspired with two other individuals to commit robbery and, in fact, robbed Timothy
Laniewski. In the course of this robbery, items taken from Mr. Laniewski included his
wallet, Burger King hat, cell phone, and two Burger King sandwiches. Since Defendant
participated in this robbery, it is clear that the property had been stolen and that he knew
that it had been stolen.
While the Commonwealth was still required to establish the conscious control or
dominion over the stolen property, "if the evidence established a conspiracy, of which the
accused is a member, and that conspiracy had as its objective the possession of the
goods, or the possession of the goods served as a means to achieve the objective of the
conspiracy, this requirement would be satisfied." Com. v. Deemer, 316 Pa.Super. 28,
33, 462 A.2d 776 (1983)(citation omitted). In this case, with the exception of the
sandwiches, the items taken from Mr. Laniewski were discovered in the vehicle in which
Defendant was riding when it was pulled over for a traffic stop only two blocks from where
the robbery occurred. The sandwiches were not recovered because the evidence
presented indicated that Defendant ate the two Burger King sandwiches. Given the
foregoing, the evidence established a conspiracy, that Defendant was a member of that
conspiracy, and that the objective of the conspiracy was the possession of the goods
being carried by Mr. Laniewski. Hence, the evidence was sufficient to establish that
Defendant had the conscious control or dominion over those goods taken from Mr.
Laniewski. Therefore, there was sufficient evidence to support Defendant's conviction
for Receiving Stolen Property.
SUFFICIENCY- ROBBERY
Defendant contends in his complaint 1(d) that "[t]here was insufficient evidence to
prove beyond a reasonable doubt that the Defendant, in the course of committing a theft,
placed Timothy Laniewski in fear of immediate serious bodily injury." This complaint was
addressed by the Trial Court in the Trial Court's Memorandum. As a result, the Trial
Court refers the Superior Court to the Trial Court's Memorandum, 11/29/17, pages 7-8.
SUFFICIENCY- ROBBERY
Defendant contends in his complaint 1 (e) that "[t]here was insufficient evidence to
prove beyond a reasonable doubt that the Defendant, in the course of committing a theft,
threatened Timothy Laniewski with immediate bodily injury." This complaint was
4
--· addressed by the Trial Court in the Trial Court's Memorandum. As a result, the Trial
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Court refers the Superior Court to the Trial Court's Memorandum, 11/29/17, pages 7�8 .
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1' WEIGHT OF THE EVIDENCE
Defendant contends in his complaint 2 that "[t]he verdict of the jury was against the
weight of the evidence where the jury's verdict could not have been based on the facts
;:., presented, but mere speculation and conjecture." This complaint was addressed by the
Trial Court in the Trial Court's Memorandum. As a result, the Trial Court refers the
Superior Court to the Trial Court's Memorandum, 11/29/17, pages 9-11.
The Clerk of Courts is directed to provide a copy of this order to Attorney Heather
Reiner and to Attorney James Zamkotowicz.
BY THE-C)OURT:
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5
IN THE COURT OF COMMON PLEAS OF .YORK COUNTY, PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANIA NO. CP-67-CR-6256-2016
v.
TERRANCE JOB DAVIS, JR.,
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JOHN M. HAMME, Esquire
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MEMORANDUM ORDER DENYING
DEFENDANT'S POST-SENTENCE MOTION
Before this Court for disposition is "Defendant's Post-Sentence Motion"
(hereinafter "Motion") filed on August 31, 2017. Defendant's "Brief in Support of
Defendant's Post-Sentence Motion" was filed on September 21, 20.17. The
Commonwealth filed the "Commonwealth's Memorandum of Law in Opposition to the
Defendant's Post-Sentence Motions" on September 29, 2017. For the reasons set forth
below, all requests for relief made in Defendant's Motion are HEREBY DENIED.
MOTION FOR JUDGMENT OF ACQUITTAL
Defendant contends that the evidence presented at trial is insufficient to find him
guilty in Counts 1 (Criminal Conspiracy to Commit Robbery), 3 (Theft By Unlawful Taking
- Movable Property), 4 (Receiving Stolen Property), 5 (Robbery), and 6 (Robbery).
"ln reviewing the sufficiency of the evidence, we examine whether the evidence
admitted at trial, and all reasonable inferences drawn therefrom, viewed in a light most
favorable to the Commonwealth as verdict winner, support the jury's finding of all the
elements of the offense beyond a reasonable doubt. Commonwealth v. Montalvo, 598
Pa. 263, 956 A.2d 926 (2008). "In applying this standard, [] the Commonwealth may
sustain its burden by means of wholly circumstantial evidence." Id.
Specifically, Defendant contends that "the Commonwealth failed to prove beyond
a reasonable doubt that Defendant conspired with another to threaten Timothy Laniewski
with immediate serious bodily injury." This contention is without merit.
First, the Commonwealth does notneed to prove that Defendant conspired with
another "to threaten Timothy Laniewski with immediate serious bodily injury." For the
offense of Criminal Conspiracy to Commit Robbery, the Commonwealth need only prove
that Defendant conspired with another to commit a crime, in this case the crime of
Robbery. The specific details of the Robbery need not be discussed. Pa. SSJI (Crim)
12.903(A).
Second, the Commonwealth did present sufficient evidence to prove beyond a
reasonable doubt that Defendant conspired with another to commit the crime of Robbery.
To sustain a conviction for criminal conspiracy, the Commonwealth must
establish that the defendant (1) entered an agreement to commit or aid
in an unlawful act with another person or persons, (2) with a shared
criminal intent and, (3) an overt act was done in furtherance of the
conspiracy. This overt act need not be committed by the defendant; it
need only be committed by a co-conspirator.
Commonwealth v. Johnson, 719 A.2d 778, 784-785 (Pa. Super. 1998) ( citations
omitted).
While the Victim, Timothy Laniewski, was unable to identify the three
2
individuals who robbed him because they were wearing masks at the time and
never took them off (N. T., 7 /10/17, pages 79, 85), he was able to provide a
limited description of those individuals. Mr. Laniewski testified that because of
their voices, he assumed the individuals who robbed him were all male. (N.T.,
7/10/17, page 69). In addition, he could tell that the individuals were all
African-American because he was able to see their necks and around their
wrists (when their sleeves pulled away from the bottom of their glo.ves). (N.T.,
7/10/17, page 69).
The Victim's limited description of the robbers, combined with the other credible
evidence presented, proved Defendant's involvement in the robbery beyond a
reasonable doubt. Miquan Johnson testified that:
• On 8/3/16, Mr. Johnson was with his child's mother, Precious Smith (N.T., 7/10/17,
page 115}; and
• Ms. Smith received a phone call from Defendant and Balijah Davis wherein they
asked for a ride N.T., 7/10/17, page 116); and
• While they were in the vehicle, there was discussion about doing a robbery and the
subject was brought up by Defendant (N.T., 7/10/17, page 117); and
• Defendant asked Ms. Smith for a ride so he could go do a robbery (N.T., 7/10/17,
· page 117); and
• Defendant asked Mr. Johnson to be a lookout, which he did (N.T., 7/10/17, page
117); and
• During the robbery, Defendant was wearing a black hoody and black pants, as well
as a cut-out mask made from a shirt and a Halloween mask (N.T., 7/10/17, pages
117-118); and
• Defendant had a black BB gun with him (N.T., 7/10/17, page 119); and
• Defendant pulled Mr. Laniewski into the breezeway and proceeded to rob him
3
.-
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1 (N.T., 7/10/17, page 120); and
• Defendant put the gun up to Mr. Laniewski's head (N.T., 7/10/17, page 120); and
• They took Mr. Laniewski's wallet, phone, and a Burger King bag (N.T., 7/10/17,
page 121 ); and
• The robbery took place in a breezeway off of West Market St. (N.T., 7/10/17, page
117); and
• After Mr. Johnson, Defendant and Mr. Davis left the breezeway they went back to
the van (N.T., 7/10/17, pages 122-123); and
• Mr. Johnson sat in the front passenger seat, next to the driver; Balijah Davis sat in
the second row, and Defendant sat in the third row (N.T., 7/10/17); and
• The Victim's wallet was given to Mr. Johnson, who placed it in a glove box
underneath his seat (N.T., 7/10/17, page 123); and
• There were two whoppers, a Burger King hat and a cell phone (N.T., 7 /10/17, page
124); and
• Balijah Davis had the cell phone and Defendant had the Burger King bag (N.T.,
7/10/17, page 124); and
• Defendant ate both of the sandwiches (N.T., 7/10/17, page 124); and
• The masks were thrown into the rear cargo area of the van once they were pulled
over [by the police] (N.T., 7/10/17, page 124).
Mr. Johnson also testified that:
• He pied guilty to Robbery, which was graded as an F2 [felony 2], in regard to this
incident (N.T., 7/10/17, page 124); and
• Mr. Johnson's Robbery charge was not graded as an F1 [felony 1] because of his
agreement to testify for the Commonwealth (N.T., 7/10/17, page 124); and
• Mr. Johnson is also hoping to be eligible for boot camp as part of the consideration
he is getting for testifying [for the Commonwealth] (N .T., 7 /10/17, page 125); and
• The agreement [with the Commonwealth] was for Mr. Johnson to testify truthfully
(N.T., 7/10/17, page 125); and
4
• Mr. Johnson was hoping to get a better sentence in exchange for his testimony
(N.T., 7/10/17, page 126).
As a result, the jury was well aware of the consideration Mr. Johnson was getting in
exchange for his testimony, and they were entitled to give his testimony whatever weight
they deemed proper.
Moreover, and despite Defendant's contention to the contrary, there was other
credible evidence presented which corroborated Mr. Johnson's testimony and pertained
J
to Defendant's involvement in the robbery.
Mr. Laniewski testified that the items that were taken from him were his wallet, cell
.,
,J phone, headphones, his Burger King work hat, a pack of cigarettes, and two sandwiches.
(N.T., 7/10/17, pages 64, 76).
Also, on the night in question, approximately 2 blocks from where the robbery took
place, Officer Bradley Polinski and Officer Bridgette Wilson initiated a traffic stop of a
white minivan. (N.T., 7/10/17, pages 89, 97). Both Officers made an in-court
identification of Defendant as one of the passengers in the vehicle. (N.T., 7/10/17.
pages 90, 99). The driver of the vehicle was Precious Smith (the mother of Mr.
Johnson's child), and there were three male passengers, along with a juvenile female and
a baby in the vehicle. (N.T., 7/10/17, pages 98, 99, 107-108) .. The three male
passengers were identified as Defendant, Miquan Johnson, and Balijah Davis. (N.T.,
7/10/17, pages 98-99).
Furthermore, Officer Gregory Schick testified that he was on duty on the night in
question and received a call for a robbery. (N.T., 7/10/17, page 135). After speaking
with the Victim, Officer Schick went to the scene of a traffic stop where West York [police]
5
had a van pulled over. (N.T., 7/10/17, page 136). Officer Schick further testified that
the individuals inside the vehicle matched the description of the robbery suspects given
by the Victim. (N.T., 7/10/17, page 136).
The testimony of these Officers corroborates Mr. .Johnson'e testimony regarding
the type of vehicle involved and the identity of the individuals in the vehicle on the night in
question.
Also, during the traffic stop, Officer Polinski heard a radio transmission about a
robbery which occurred in the area of W. Market Street, and that there were masks
involved. (N.T., 7/10/17, page 99). Upon a search of the vehicle, the Officers
discovered masks, sunglasses, and a black BB gun which resembles a semiautomatic
pistol. (N.T., 7/10/17, pages 91, 92, 95, 102-105; Commonwealth's Exhibits# 2, 4, 5).
Mr. Laniewski was shown photos of the masks recovered from the vehicle
(Commonwealth's Exhibit #'s 2 and 3), and he identified them as the masks worn by the
individuals who robbed him. (N.T., 7/10/17, pages 73-75).
A more complete search discovered Mr. Laniewski's wallet, cell phone, and Burger
King employee hat. (N.T., 7/10/17, pages 100, 101 ). The Victim's wallet was found in
the front seat underneath Mr. Johnson, and the Victim's cell phone was found in Mr.
Davis' pocket. (N .T., 7 /10/17, page 100). This evidence corroborates Mr. Johnson's
testimony regarding what items were used in the commission of the robbery, the items
taken from the Victim, and who had the items and where they were located in the vehicle
after the robbery.
Given the foregoing, there was sufficient credible evidence provided to prove that
6
Defendant entered into an agreement to commit the unlawful act of Robbery with Miquan
Johnson and Balijah Davis, and that they had a shared criminal intent to do so. The
overt acts in furtherance of this agreement were driving to the location, identifying the
Victim, and proceeding to rob the Victim.
Defendant further contends that "the Commonwealth failed to prove beyond a
reasonable doubt that Defendant, in the course of committing a theft, threatened Timothy
Laniewski with immediate serious bodily injury." In support of this contention, Defendant
claims that "the only evidence the Commonwealth presented to prove that Defendant
took place in the robbery, was the testimony of Miquan Johnson, who agreed to testify
against Defendant after accepting· a lesser sentence for his involvement in the robbery of
Mr. Laniewski in exchange for his testimony against Defendant." This contention is
belied by the record and without merit.
To find Defendant guilty of Robbery, a First Degree Felony, the jury needed to find
that Defendant either threatened the victim with serious bodily injury, or intentionally put
the victim in fear of immediate serious bodily injury. Similarly, to find Defendant guilty of
Robbery, a Second Degree Felony, the jury needed to find that Defendant either
threatened the victim with immediate bodily injury, or intentionally put the victim in fear of
immediate bodily injury.
Miquan Johnson testified that Defendant not only participated in the robbery, but
that he was the one holding the black BB gun to the Victim's head during the commission
of that robbery. (N.T.; 7/10/17, pages 119-120). In addition, and as previously
indicated, there was other evidence presented that not only proved Defendant's
7
participation in the robbery, but also corroborated much of Mr. Johnson's testimony.
Moreover, the jury heard testimony regarding the consideration Mr. Johnson received for
his testimony. Despite this consideration, the jury, being entitled to give his testimony
whatever weight they deemed proper, found Mr. Johnson to be credible.
Moreover, Mr. Laniewski testified that during the robbery, one of the individuals was
directly in front of him holding a gun. (N.T., 7/10/17, page 70). He described the gun as
being all black, indicated that he is not good with types of guns, but that it looked like a 9
mm type. (N.T., 7/10/17, page 70). Furthermore, Mr. Laniewski testified that the
person with the gun pointed it directly at his forehead. (N.T., 7 /10/17, page 70). Finally,
Mr. Laniewski testified that at the time of the robbery he believed the gun was real and
that he was scared he was going to die. (N.T., 7/10/17, page 72).
In addition, Mr. Laniewski was shown a photo of a gun (Commonwealth's Exhibit#
2), and he identified the gun in that photo as the gun that was pointed at his head. (N.T.,
7/10/17, page 73). The gun that was in the photo (Commonwealth's Exhibit# 2) is the
same gun that was discovered in the vehicle by Officer Bridgette Wilson after the vehicle
stop on the night in question. (N.T., 7/10/17, pages 91�92).
Given the foregoing, there was sufficient credible evidence to prove beyond a
reasonable doubt that Defendant, by holding a gun to Mr. Laniewski's head during the
course of robbing him, intentionally put Mr. Laniewski in fear of immediate serious bodily
injury and in fear of immediate bodily injury.
The evidence admitted at trial, and all reasonable inferences drawn therefrom,
supports the jury's finding of all the elements of the offenses beyond a reasonable doubt
8
and Defendant's Motion for Judgment of Acquittal is HEREBY DENIED.
NEW TRIAL - WEIGHT OF THE EVIDENCE
Defendant contends that he is entitled to a new trial on the grounds that the
verdicts were contrary to the weight of the evidence.
"A challenge to the weight of the evidence is directed to the discretion of the trial
judge, who heard the same evidence and who possesses only narrow authority to upset a
jury verdict." Commonwealth v. Sanchez, 36 A.3d 24, 26-27 (Pa. 2011)(citation
omitted). "The trial judge may not grant relief based merely on 'some conflict in
testimony or because the judge would reach a different conclusion on the same facts."
& "The finder of fact- here, the jury - exclusively weighs the evidence, assesses the
credibility of witnesses, and may choose to believe all, part, or none of the evidence." 1si.
"Issues of witness credibility include questions of inconsistent testimony and improper
motive." kl "Relief on a weight of the evidence claim is reserved for 'extraordinary
circumstances, 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." kl
In this case, Defendant claims that "the evidence presented at trial, at best,
marginally supports the verdict of guilty of all counts[,]" and that the "verdict was not
based upon the facts presented, but was a product of speculation and conjecture." In
support of this contention, Defendant claims that "the weight of the evidence presented at
trial showed that Defendant was not at the scene of the robbery and a jury would be
9
unable to provide a reasonable verdict of guilty based from the aforementioned evidence
presented." This contention is without merit.
The Victim, Mr. Laniewski, testified that he left work that evening between 12:15
and 12:30 a.m. (N.T., 7 /10/17, pages 63, 81). Mr. laniewski further testified that he
walks home from work, and that it takes him 45 minutes to an hour to do so. (N.T.,
7/10/17, pages 64, 81). Mr. Laniewski testified that the incident in question occurred
"[s]omewhere around 1 a.m., give or take a few minutes" (N.T., 7/10/17, page 81 }, and
that the entire incident lasted about 2-3 minutes. (N.T., 7/10/17, pages 76, 84).
Defense witness Johara Wilson testified that she saw Defendant around 1 :30, 2:00
a.m. out in front of her house on the night in question (N.T., 7/11/17, pages 145-146).
However, on cross-examination, Ms. Wilson also testified that:
• She had just woke up and went outside because she was bored (N.T., 7/11/17,
page 149); and
• She has known Defendant for 5 years and considers him a friend (N.T., 7/11/17,
page 149).
Moreover, as a rebuttal witness and on re-direct, Officer Polinski testified that Ms.
Wilson's address is about six (6) city blocks from where the robbery took place (N.T.,
7/11/17, page 161}, and that it would take approximately 15-.20 �inutes to walk six blocks
in his jurisdiction (N.T., 7/11/17, page 165).
Either the jury, being entitled to believe all, part, or none of the evidence, did not
find Ms. Wilson to be credible or, given the close proximity of her home to the crime
scene, did not find her testimony to be exculpatory. Given the foregoing, and because
on the night in question Defendant was discovered by the police in a vehicle about two (2)
10
blocks away from where the robbery occurred, with two other African American males,
with some of the Victim's belongings, along with the masks and gun that were used in the
commission of the robbery, it was reasonable for them to find Ms. Wilson's testimony
incredible.
Hence, and contrary to Defendant's contention, the jury's verdict of guilty on all
counts submitted was not based on speculation and conjecture, but on direct and
circumstantlatevldence. The evidence set forth above was sufficient to find Defendant
guilty of all of those offenses beyond a reasonable doubt. (While Defendant makes no
specific argument regarding Theft by Unlawful Taking and Receiving Stolen Property,
those offenses are lesser included offenses of Robbery. The evidence presented at trial
was sufficient to find Defendant guilty of Robbery. Ergo the evidence was also sufficient
to find Defendant guilty of Theft by Unlawful Taking and Receiving Stolen Property.)
Given the foregoing, the jury's verdict is not so contrary to the evidence as to shock
the conscience of the Court. Therefore a new trial is not warranted and Defendant's
Motion for a New Trial is HEREBY DENIED.
NOTICE TO DEFENDANT
Defendant is HEREBY NOTIFIED that he has the right to appeal this order and that
if he wishes to do so, must file the notice of appeal within thirty (30) days after entry of this
order; that he has the right to assistance of counsel in the preparation of the appeal; the
right, if Defendant is indigent, to appeal in forma pauperis and to proceed with assigned
counsel as provided in Pa.R.Crim.P; 122; and the qualified right to bail under
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Pa.R.Crim.P. 521 (8).
The Clerk of Courts is directed to provide a copy of this order to Attorney John
Hamme, Defendant Terrance Davis, Jr., and to Assistant District Attorney Jared Mellott.
Date: /! :zq, 17
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