Com. v. Henry, Z. ( 2021 )

J-A11009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY ROBERT HENRY :
:
Appellant : No. 1756 WDA 2019
Appeal from the Judgment of Sentence Entered July 3, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012193-2018
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 19, 2021
Zachary Robert Henry appeals from the judgment of sentence imposed
on his convictions for Burglary, Criminal Conspiracy, Criminal Trespass,
Criminal Mischief, Theft, and Receiving Stolen Property.1 He challenges the
sufficiency and weight of the evidence. We affirm.
At Henry’s bench trial in March 2019, Detective Sergeant Joseph Brace
testified that in November 2017 he assisted in the investigation of a burglary
and learned that the victim had reported multiple items missing, including two
diamond rings, a silver necklace, and gold jewelry. See N.T. Trial, 3/20/19,
at 8, 14, 30. He determined that several of the items had been sold to Steel
City Gold Buyers (“Steel City”). Id. at 8-9. The seller of the jewelry was Caelan
Klingeman. Id. at 15.
____________________________________________
1 18 Pa.C.S.A §§ 3502, 903, 3503, 3304, 3903, and 3925, respectively.
J-A11009-21
On cross-examination, Detective Brace acknowledged that Klingeman
had a history of drug addiction, had recently been released from a
rehabilitation facility, had a history of theft, and was on probation at the time
of the burglary. Id. at 17-19, 21. He said he interviewed Klingeman, who was
initially evasive and said that another person, not Henry, had given her the
jewelry. Id. at 19, 20, 21 25. However, Detective Brace said that in a
subsequent interview, Klingeman was more cooperative and admitted that she
and Henry had committed the burglary and gave police Henry’s telephone
number.
A second police officer, Detective Reginald Humbert, then testified that
police used the phone number to identify Henry’s general location at the
relevant times. Id. at 55. He said they confirmed that the number was related
to Henry and executed a warrant for cell site activation records. He said there
were seven activations at a tower located approximately 1.5 miles from the
victim’s residence at the time of the burglary. Id. at 58. That same day, there
were additional activations on the same block as Steel City at 10:45 a.m. and
at a second tower 1.5 blocks away at 10:48 a.m. Id. at 55-57. Detective
Humbert conceded that activations show that a user was in the vicinity of the
tower and not necessarily directly beside it. Id. at 55. He also said that while
the activations do not give an exact location, as the activation can “skip” a
tower, they give a general location. Id. at 55, 58.
Klingeman also testified and implicated Henry. She said that Henry
picked her up and after driving around Moon Township, he picked a house to
-2-
J-A11009-21
burglarize. Id. at 36. She admitted that while Henry committed the burglary,
she stayed in the car and acted as a “lookout.” Id. She said Henry returned
about a half hour later with money, electronics, and jewelry. They then went
to Steel City, where she pawned the jewelry as Henry “couldn’t use his ID to
pawn the jewelry.” Id. at 37. Klingeman also testified that she was a drug
addict in recovery and has a history of theft. Id. at 39-41. Klingeman stated
that when she agreed to be interviewed by police, she was still facing charges
and there was no agreement to withdraw her case. Id. at 42-43. Klingeman
conceded, however, that the Commonwealth later agreed to reduce her three
felony charges to misdemeanors in exchange for her testimony. Id. at 34.
Henry testified in his own defense and offered an alibi. He said he was
moving items from his storage locker to his house during the time the crime
occurred. Id. at 70. He stated that he borrowed a car from his girlfriend, Helen
Henkin, whom he dropped off at the Air Force Base near Moon Township
around 5:00 a.m. and picked her up around 4:00 p.m. Id. at 68.
Regarding his interaction with Klingeman, he testified that around 8:15
a.m., he received a call from Klingeman indicating that she was stranded in
Moon Township. Id. at 69. He said she asked if he would give her a ride and
said she would pay him. Id. He met her at a McDonald’s and, after having
something to eat, they went to Steel City so that she could sell some jewelry
to get the money to pay Henry. Henry stated he was with Klingeman for about
an hour and a half. Id. at 69-70. Henry said he then “again proceeded to take
stuff back and forth to [his] storage locker until it was time for [him] to go get
-3-
J-A11009-21
Helen,” which was “around 4:00.” Id. at 70. In Henry’s view, Klingeman was
lying in an attempt to receive a lesser sentence. Id. at 72.
The trial court found Henry guilty of the above-referenced crimes and
sentenced him in total to six to 12 years’ imprisonment followed by five years’
probation. Henry filed a post-trial motion asking the court to reconsider its
finding of guilt and challenging, in part, the reliability of Klingeman’s
testimony. The trial court denied the motion. Henry filed a timely appeal.2
Henry raises the following issues:
[1.] Inasmuch as the sole witness who connected defendant
with the burglary was a participant in it, gave inconsistent
stories, had a history of crimen falsi, and benefited by
testifying, was the evidence sufficient to support the
verdict?
[2.] Assuming sufficiency, was the verdict against the
weight of the evidence for the reasons stated above?
Henry’s Br. at 4.
In his first issue, Henry claims the evidence was insufficient to establish
his involvement in the offenses. He notes that Klingeman was the sole witness
to connect him with the crimes and maintains that her testimony was too
unreliable to be sufficient to provide the connection, as a matter of law. He
points out that even according to her own testimony, she was a participant in
the crimes, had a history of crimes involving dishonesty, and benefited by
____________________________________________
2 Henry’s counsel filed a Motion to Withdraw as Counsel on July 25, 2019. He
did not complete the docketing statement, with the result that the appeal was
dismissed on September 16, 2019. On October 30, 2019, following remittal,
the trial court reinstated Henry’s appellate rights and appointed new counsel.
The instant appeal was filed on November 26, 2019.
-4-
J-A11009-21
testifying. He adds that she gave inconsistent stories. Henry argues that
although the phone records placed him on or near the same block as Steel
City, that establishment is in downtown Pittsburgh on a well-traveled street
near other retail establishments. He thus claims the evidence was as
consistent with innocence as with guilt. Id. at 11.
A challenge to the sufficiency of the evidence requires us to determine
whether the evidence supports every element of the crime charged beyond a
reasonable doubt. Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa.Super.
2015). As sufficiency of the evidence is a question of law, our standard of
review is de novo. Id. Our scope is limited to a review of the record evidence,
which we view in the light most favorable to the Commonwealth, as verdict-
winner. Id.In conducting this review, we do not assess the credibility of witnesses
or the weight of the evidence. Those questions are within the sole purview of
the finder of fact. Id. However, if the evidence is so inherently unreliable that
a verdict based on it could be no more than surmise or conjecture, the
sufficiency challenge has merit. Commonwealth v. Karkaria, 625 A.2d
1167, 1170 (Pa. 1993).
Henry cites Karkaria to maintain that the evidence here, including
Klingeman’s testimony, was too tenuous to support a finding that he was
involved in the crimes, as a matter of law. We disagree. The rule Henry cites
is traditionally formulated as stating that whether the evidence proved guilt
beyond a reasonable doubt is for the finder of fact “unless the evidence be so
-5-
J-A11009-21
weak and inconclusive that as matter of law no probability of fact can be drawn
from the combined circumstances.” Commonwealth v. Libonati, 31 A.2d
95, 97 (Pa. 1946) (citation omitted), cited with approval in In Int. of J.B.,
189 A.3d 390, 409 (Pa. 2018).
The arguments Henry makes do not go so far as to show that the
evidence was “so weak and inconclusive that as matter of law no probability
of fact can be drawn from the combined circumstances.” Id. Rather, he offers
reasons for not crediting the Commonwealth’s position. Such arguments are
for cross-examination or argument. They do not render the evidence
insufficient as a matter of law.
Our review reveals that the evidence was sufficient. The trial court found
Klingeman credible, and it relied on her testimony and the phone records when
finding Henry guilty. As to the phone records, the court explained:
The [phone] records were particularly significant in light of
[Henry]’s testimony that he received a call from Klingeman
at 8:15[] in the morning to come pick her up in Moon
Township and. . . then took her to Steel City so that she
could conduct some business and then dropped her off at
the bus station and that he believed that all of this occurred
in an hour and one half. This would have meant that his
involvement with Klingeman ended by 9:45 a.m., or an hour
before the first tower activation for Steel City. It was
undisputed that Klingeman was the individual who made the
sales to Steel City and that based upon [Henry]’s phone
records, they would have had to occur sometime between
10:45 and 10:48 a.m. on November 20, 2017.
1925(a) Op. at 8-10. Henry’s sufficiency challenge fails.
-6-
J-A11009-21
In his second argument, Henry claims the verdict was against the weight
of the evidence. Our standard of review of a weight claim is:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. 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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013). Further,
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. 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. It has often been 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.
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa.Super. 2014).
“Accomplice testimony should be viewed with disfavor because it comes
from a corrupt and polluted source and . . . it should be accepted with care
and caution.” Commonwealth v. Lawrence, 165 A.3d 34, 45 (Pa.Super.
2017). “[S]uch testimony may be more dependable if supported by
independent evidence but . . . ‘even if there is no independent supporting
evidence,’ a defendant may still be found guilty ‘solely on the basis’ of an
accomplice’s testimony if, after applying the aforementioned rules, the fact
-7-
J-A11009-21
finder is ‘satisfied beyond a reasonable doubt that the accomplice testified
truthfully and the defendant is guilty.’” Id. (quoting Pa.SSJI (Crim) 4.01).
Here, the trial court found Klingeman’s testimony credible, noting that
her testimony must be received with caution, as it is from a co-conspirator.
Nonetheless, it found it “more reliable” because it was “supported by
independent evidence” – the phone records. 1925(a) Op. at 9. The court thus
concluded that “the evidence show[ed] Klingeman’s recital of the facts
comported with Henry’s phone records.” Id. at 10. It noted that it “was aware
that Klingeman was a drug addict and had recently left rehabilitation and did
not want to be facing a felony burglary and drug charge and had sought
leniency in exchange for her testimony.” Id. However, it concluded that “the
records provide the independent source for determining her credibility and [it]
relied upon those records and her testimony when making a determination
that Henry was guilty.” Id.
We perceive no abuse of discretion. Credibility was for the court, as
factfinder, and we will not disturb its credibility findings on appeal. The court
considered Klingeman’s testimony, in light of the other testimony and
evidence admitted at trial, and found Henry guilty of the crimes at issue. It
was not an abuse of discretion to deny the challenge to the weight of the
evidence.
Judgment of sentence affirmed.
-8-
J-A11009-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 48/19/2021
-9-