Com. v. Johnson, D. ( 2021 )

J-S19027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEJON MALIK JOHNSON :
:
Appellant : No. 127 WDA 2021
Appeal from the Judgment of Sentence Entered December 17, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0007405-2019
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JULY 16, 2021
Dejon Malik Johnson (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of robbery and criminal
conspiracy.1 We affirm.
The trial court recounted the following facts:
The evidence presented at trial established that on June 23, 2019,
Tiontay Bey [the victim] was walking to a friend’s house in the
McKeesport area of Allegheny County. She had just left a UniMart
where she had purchased cigarettes and sunflower seeds and was
walking toward the Crawford Village housing complex while
[talking] with her friend Amberly Hogan on her iPhone. As she
crossed the intersection of Oaklyn and McCleary a group of 5-6
teenagers emerged from an alleyway and approached her. Some
of the group stayed back while [Appellant] and another individual
approached her directly. [Appellant] pulled a gun and pointed it
directly at her chest and said, “come up off it.” After she gave
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 903.
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them the money in her pocket, she was instructed to give up her
phone that was in her hand, and her tennis shoes.
The victim immediately recognized [Appellant] as the son of a
woman she has known for more than 25 years. [Appellant] was
wearing black sweatpants and a black hooded sweatshirt. The
hood was up on the sweatshirt and the string on the hood was
pulled tight around the face so she could see the area from his
eyebrows to his bottom lip. She asked “Dejon, why would you rob
me”, “I know you, you don’t need to do this.” She turned over all
of the items and the group of teens took off. She then ran full
speed toward Crawford Village to the home of her friend Tyra
Reese. When she arrived, she told her friend she had been robbed
and asked to use her phone to call Tionte Askew, [Appellant’s]
mom, to tell her [Appellant] had robbed her. After she couldn’t
reach [Appellant’s] mom she used Tyra’s phone to try to track her
own iPhone using the Find My iPhone App. After locating her
iPhone, on Odair Street, [the victim], Tyra Reese, and Amber[ly]
Hogan decided to take Ms. Hogan’s car and drive to that location.
When they arrived at that location, Odair Street, [the victim] was
in the passenger seat. She observed a group of men midway up
the street. [Appellant] was standing in the street and was now
shirtless, but still wearing black sweatpants. She recognized her
iPhone in his hand because of the Mickey Mouse cell phone case.
She yelled [to Appellant], “Dejon, give me my phone back. Keep
the shoes and the money just give me my phone.” One of the
men in the group said, “you’re making it hot, get the fuck out of
here.” After the victim continued to plead with [Appellant] to
return her phone, she noticed that the man who told her to “get
the fuck out” had a gun. When she told [Appellant] he could keep
everything else, that she just wanted her phone, someone in the
group shot at the car. Amber[ly] Hogan drove in reverse up Odair
Street to leave the scene. Police had responded to the area after
hearing shots fired and saw Ms. Hogan’s vehicle backing up at a
high rate of speed. When the vehicle was stopped the women
reported the robbery. Officers spoke with the victim on scene and
took a report. Approximately twenty minutes later [Appellant]
arrived back on scene and told officers “I was there, but I didn’t
do it.”
Trial Court Opinion, 3/11/21, at 4-5 (record citations omitted).
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The Commonwealth charged Appellant with the aforementioned crimes,
as well as simple assault and recklessly endangering another person (REAP).
Following a non-jury trial on October 1, 2020, the court found Appellant guilty
of robbery and criminal conspiracy, and not guilty of simple assault and REAP.
On December 17, 2020, the court sentenced Appellant to 160 to 320 days of
incarceration, with credit for time served, followed by 10 years of probation.
Appellant filed a timely post-sentence motion which the trial court denied on
December 28, 2020. This timely appeal followed.2
Appellant presents two evidentiary issues for review:
1. Whether the verdict was against the weight of the evidence to
convict [Appellant] of Robbery?
2. Whether the evidence presented by the Commonwealth was
sufficient to support the conviction of [Appellant] for Criminal
Conspiracy — Robbery?
Appellant’s Brief at 3.
In his first issue, Appellant challenges the weight of the evidence.
Appellant’s Brief at 11-14. We have stated:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment for that
of the finder of fact. Therefore, we will reverse a jury’s verdict
and grant a new trial only where the verdict is so contrary to the
evidence as to shock one’s sense of justice. A verdict is said to
be contrary to the evidence such that it shocks one’s sense of
justice when the figure of Justice totters on her pedestal, or when
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2 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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the jury’s verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall from
the bench, then it is truly shocking to the judicial conscience.
Furthermore, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and quotation marks omitted). “Thus, the trial court’s denial
of a motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-80
(Pa. 2008) (citation omitted).
Appellant argues his robbery conviction is against the weight of the
evidence because the victim’s testimony “was so tenuous and uncertain so as
to be lacking in credibility to support the conviction.” Appellant’s Brief at 10-
11. Appellant complains that while the victim testified she immediately
recognized Appellant, she “had never actually interacted with [him] before
and had only seen him on Facebook.” Id. at 12. Appellant also asserts the
trial court should not have credited the victim’s testimony because she had a
prior conviction of crimen falsi. Id.
In response, the Commonwealth argues that Appellant, “asks that this
Honorable Court re-weigh the evidence in his favor, which is improper unless
a very high threshold is met: that the verdict was so contrary to the evidence
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as to amount to a miscarriage of justice.” Commonwealth Brief at 13. The
Commonwealth is correct.
The trial court stated it “considered all of the evidence presented at trial
in reaching the verdict.” Trial Court Opinion, 3/11/21, at 6. Specifically:
[The trial court] was aware of [the victim’s] prior conviction for
welfare fraud. However, I found the victim’s testimony credible.
She knew [Appellant] and was absolutely certain that it was
[Appellant] and his friends that approached her after she left the
UniMart, and that it was [Appellant] that pointed a gun at her
chest and told her to “come up off it.” Her friend Amberly Hogan
heard her say “please don’t shoot me” when she was being robbed
because the two were talking over FaceTime when the robbery
occurred. After the robbery she ran toward Crawford Village, in
the opposite direction of her assailants. When she arrived at her
friend Tyra’s home she attempted to reach [Appellant’s] mother
in an attempt to get her property back. When that was
unsuccessful, she tracked her cell phone to a location where she
found [Appellant] holding her cell phone in his hand. All of the
same arguments that [Appellant] raises on appeal to attack the
credibility of the victim’s testimony were raised at trial and
rejected by this court. The testimony of the victim and her friend
Ms. Hogan was credible and any different verdict would shock this
court’s sense of justice.
Trial Court Opinion, 3/11/21, at 6-7.
As previously stated, the factfinder — in this case the trial court — is
the “exclusive judge of the weight of the evidence” and “determines the
credibility of the witnesses.” Boyd, supra. Here, the record reflects the trial
court acted within its discretion in crediting the testimony of the
Commonwealth’s witnesses. See, e.g., Commonwealth v. Griscavage, 517
A.2d 1256, 1259 (Pa. 1986). Accordingly, Appellant’s weight of the evidence
claim does not merit relief.
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In his second issue, Appellant argues the evidence was insufficient to
sustain his conviction for criminal conspiracy. Appellant’s Brief at 14-16.
Appellant asserts, “no evidence was presented at trial to show that there was
an agreement of any sort between [Appellant] and another individual for one
of them to commit a robbery.” Appellant’s Brief at 15. He further argues the
“basis of the conspiracy charge is simply that [the victim] was approached by
multiple individuals. Even circumstantially, this alone is insufficient to support
a conviction for conspiracy.” Id.We recognize our standard of review:
A claim challenging the sufficiency of the evidence presents a
question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
A.2d 745, 751 (2000). We must determine “whether the evidence
is sufficient to prove every element of the crime beyond a
reasonable doubt.” Commonwealth v. Hughes, 521 Pa. 423,
555 A.2d 1264, 1267 (1989). We “must view evidence in the light
most favorable to the Commonwealth as the verdict winner, and
accept as true all evidence and all reasonable inferences
therefrom upon which, if believed, the fact finder properly could
have based its verdict.” Id. Our Supreme Court has instructed:
[T]he 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. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, 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.
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Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236
n.2 (2007).
Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).
With respect to criminal conspiracy, the trier of fact must find: (1) the
defendant intended to commit or aid in the commission of the criminal act;
(2) the defendant entered into an agreement with another (a “co-conspirator”)
to engage in the crime; and (3) the defendant or one or more of the other co-
conspirators committed an overt act in furtherance of the agreed upon crime.
18 Pa.C.S.A. § 903. The essence of criminal conspiracy is the agreement
between co-conspirators. We have explained:
Mere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to establish
that a defendant was part of a conspiratorial agreement to commit
the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his co-
conspirator. Direct evidence of the defendant’s criminal intent or
the conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
the relations, conduct or circumstances of the parties or overt acts
on the part of the co-conspirators. Once the trier of fact finds that
there was an agreement and the defendant intentionally entered
into the agreement, that defendant may be liable for the overt
acts committed in furtherance of the conspiracy regardless of
which co-conspirator committed the act.
Commonwealth v. Golphin, 161 A.3d 1009, 1018–19 (Pa. Super. 2017)
(citations omitted).
Appellant claims “there was no evidence presented to indicate an
agreement between [Appellant] and one or more individuals to commit a
robbery, let alone an overt act committed in furtherance of the conspiracy.”
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Appellant’s Brief at 10. The Commonwealth counters, “there was
unquestionably sufficient circumstantial evidence of an agreement between
[A]ppellant and members of his cohort to show that they acted in concert in
intimidating the victim; that one of the group in particular directly confronted
the victim with [A]ppellant; and that, after the robbery, the group all fled the
scene together.” Commonwealth Brief at 14. The record supports the
Commonwealth’s argument, as well as the trial court’s determination that the
evidence was sufficient to sustain Appellant’s conspiracy conviction.
For example, the victim testified Appellant was part of a group that
approached from an alley, with some of the group standing behind her, and
Appellant and another male standing in front of her. N.T., 10/1/20, at 19, 21-
22. The victim described Appellant pointing a gun at her chest and robbing
her. Id. at 19, 66. After Appellant obtained the victim’s cash, cell phone, and
sneakers, he fled with the group back through the alley. Id. at 26. The
victim’s friend, Ms. Hogan, testified, inter alia, to being on the phone with the
victim during the robbery, and hearing the victim say, “please don’t shoot
me.” Id. at 116. Consistent with this testimony, the trial court found
Appellant “conspired with those other men he was with to approach the victim
and rob her of her belongings.” Trial Court Opinion, 3/11/21, at 7. See also
Commonwealth v. Russell, 665 A.2d 1239, 1246 (Pa. Super. 1995)
(evidence sufficient to sustain conviction for conspiracy where testimony
showed group of men assembled together, conversed, shots were fired, and
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men fled together); Commonwealth v. Nelson, 582 A.2d 1115, 1119 (Pa.
Super. 1990) (evidence sufficient to sustain conspiracy conviction where two
men entered bar together, one announced hold-up, the men robbed bar and
then fled together).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/16/2021
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