Com. v. Grant, G.

J-S68029-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARNELL GRANT, :
:
Appellant : No. 2621 EDA 2014
Appeal from the Judgment of Sentence April 25, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0008319-2011
BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 04, 2015
Garnell Grant (“Grant”) appeals from the April 25, 2014 judgment of
sentence entered by the Philadelphia County Court of Common Pleas. Upon
review, we affirm.
The trial court provided the following summary of the facts adduced at
trial:
On Friday, March 11, 2012, at around 5:00 p.m.,
Ms. Mariethia Smith left work and went to her home,
to meet a friend and go to a casino. N.T.
11/26/2013, pp. 12-15. Ms. Smith’s friend picked
her up from her house and they drove towards the
casino. Id. at 14. A few blocks from her house, Ms.
Smith noticed [Grant] standing on the corner or Mt.
Airy Avenue and Stenton Avenue. Id. at 15. [Grant]
had been in a relationship with Ms. Smith for
approximately three months, spanning from June
2009, to September, 2009. Id. at 15, 23. Following
their relationship, Ms. Smith obtained a [p]rotection
from [a]buse (“PFA”) [o]rder from the courts on
January 3, 2011, set to expire in January, 2014. Id.
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at 13. In 2010 and 2011, Ms. Smith received
numerous threatening phone calls from [Grant],
including sixteen voicemails on her home phone, and
eighteen voicemails on her cell phone. Id. at 26-27.
After the PFA was served on [Grant], he called Ms.
Smith saying he wasn’t “scared of no f’ing cops,
none of them.” Id. at 14.
Upon seeing [Grant], Ms. Smith asked her friend
to drive her back home. Id. at 15. Ms. Smith entered
her house, locked the doors behind her, made sure
not to turn any lights on, and waited in the den
located on the second floor. Id. at 15-16. Prior to
March 11, 2012, someone had broken into her house
several times. Id. at 15. Ms. Smith testified that
someone busted her stack pipe, broken her Lennox
crystal, put white paint on her white gowns, cut up
most of her clothes, stole her jewelry, and stole her
money. Id. at 28. After being home approximately
twenty minutes, Ms. Smith heard her back door open
and her security alarm announce that the back door
had been opened. Id. at 15-16. All of the doors in
the house were previously locked at the time. Id.
When Ms. Smith heard the door open, she ran to the
staircase, turned the downstairs light on, and ran
down the steps. Id. at 16. From midway down the
steps, Ms. Smith observed [Grant] standing in her
living room. Id. [Grant]’s eyes widened when he
made eye contact with Ms. Smith. Id. at 18. [Grant]
then ran out the back door, as Ms. Smith chased
him, but she lost sight of him. Id. at 18-19. Ms.
Smith testified she feared for her life when she saw
[Grant] standing inside her home. Id. at 19.
Ms. Smith further testified she never intended for
[Grant] to possess keys to her home. [Id. at] 29. On
one occasion, while in a relationship with [Grant],
Ms. Smith let [Grant] use her keys temporarily to put
something in her car while at Home Depot. Id. at 35.
Once in possession of her keys, Ms. Smith searched
for [Grant] but couldn’t find him in the store for an
extended period of time. Id. at 35. [Grant] handed
the keys back to Ms. Smith before they left Home
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Depot. Id. Ms. Smith changed her locks five times
during the period of the break-ins. Id. at 31.
On a Monday in March, 2011, Mr. Benjamin
Smith, went to Ms. Smith’s house to talk to her. [Id.
at] 46. Mr. Smith was a coworker of Ms. Smith and
knew her for over fifteen years. Id. [] When Mr.
Smith knocked on the front door, [Grant] answered,
and informed him that Ms. Smith was not at home.
Id. Mr. Smith left a message for Ms. Smith including
his phone number. Id. Mr. Smith didn’t receive a
reply from Ms. Smith that week. On Wednesday of
that week, Mr. Smith saw again [Grant] on the street
and asked if he had given the message to Ms. Smith.
Id. at 47. [Grant] replied, “I gave it to her. She’s
going to get back to you.” Id. Ms. Smith testified
that at no point in March of 2011, did [Grant] have
permission to be in her home. [Id. at] 65[].
Police Officer Tyrone Brotis and Detective Jamal
Rodriguez both testified [that] they investigated
claims from Ms. Smith about a person breaking into
her house. Id. at 64-65.
[Grant] testified his relationship with Ms. Smith
lasted about a year, but then testified he couldn't be
sure exactly how long their relationship lasted, [but
that he believed he ended the relationship with Ms.
Smith approximately two weeks before March 11,
2011]. [Id. at] 68-70. [Grant] further testified he
didn’t go to Ms. Smith[’]s house on March 11, 2011,
never met Mr. Smith, and never answered the door
for Mr. Smith. Id. at 68-69. The [trial c]ourt found
[Grant]’s testimony to be incredible.
Trial Court Opinion, 2/9/15, at 1-3.
At the conclusion of the bench trial held on November 26, 2013, the
trial court found Grant guilty of burglary, criminal trespass, harassment, and
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criminal contempt for violating the PFA.1 The trial court sentenced him on
April 25, 2014 to 54 to 108 months of incarceration. On May 5, 2014, Grant
filed a timely post-sentence motion challenging the weight and sufficiency of
the evidence to support his convictions. On September 3, 2014, the trial
court issued an order denying the post-sentence motion by operation of law.
Thereafter, Grant filed a timely notice of appeal, followed by a timely concise
statement of errors on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Grant raises two issues for our review:
I. Whether the lower court committed an abuse of
discretion in sentencing [Grant] above his
aggravated range of sentencing guidelines.
II. Whether the evidence was sufficient to convict
[Grant] of the charges that he was found guilty of
where the evidence presented by the Commonwealth
was so unreliable and contradictory as to preclude
the trier of fact from rendering the verdict that it did.
Grant’s Brief at 4.
The first issue Grant raises on appeal challenges the discretionary
aspects of his sentence. This issue is not subject to our review as a matter
of right. Rather, “[a]n appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary aspects of a
sentence.” Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super.
1
18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(i), 2709(a)(1); 23 Pa.C.S.A. §
6114(a).
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2015) (citation omitted). This requires the appellant to satisfy all of the
following:
(1) the appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Id. (citation omitted).
Our review of the record reveals that although Grant filed a post-
sentence motion, he failed to raise therein a claim challenging the
discretionary aspects of his sentence. See Post-Sentence Motion, 5/5/14.
The record further reflects that Grant did not present this argument before
the trial court at his sentencing hearing. See generally N.T., 4/25/14, at 2-
28 As such, the issue is waived. See Commonwealth v. Mann, 820 A.2d
788, 794 (Pa. Super. 2003) (“[I]ssues challenging the discretionary aspects
of sentencing must be raised in a post-sentence motion or by raising the
claim during the sentencing proceedings. Absent such efforts, an objection
to a discretionary aspect of a sentence is waived.”).
In his second issue on appeal, Grant asserts that the evidence
presented at trial was insufficient to support his convictions “because certain
facts were elicited which ran contrary to the Commonwealth’s case-in-chief.”
Grant’s Brief at 14-17. His argument focuses solely upon the credibility of
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the testimony presented by the Commonwealth, stating that Ms. Smith’s
testimony was “unreliable, contradictory and forms an insufficient basis for a
verdict,” relying on our Supreme Court’s decision in Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976), in support of his argument.
Grant’s Brief at 15-17.
It is well settled that “[a]n argument regarding the credibility of a
witness’[] testimony goes to the weight of the evidence, not the sufficiency
of the evidence.” Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.
2014). In Farquharson, however, our Supreme Court stated that in certain
circumstances, the evidence presented may be so unreliable and
contradictory as to require vacation of a conviction on sufficiency grounds:
Traditionally under our system of jurisprudence,
issues of credibility are left to the trier of fact for
resolution. While there may be some legitimacy for a
trial court, who has also observed the witnesses as
they testified, to consider the weight of the evidence
and to that extent review the jury’s determination of
credibility, there is surely no justification for an
appellate court, relying solely upon a cold record, to
exercise such a function.
On appellate review of a criminal conviction, we
will not weigh the evidence and thereby substitute
our judgment for that of the finder of fact. To do so
would require an assessment of the credibility of the
testimony and that is clearly not our function.
This concept, however, must be distinguished
from an equally fundamental principle that a verdict
of guilt may not be based upon surmise or
conjecture. Following this principle, courts of this
jurisdiction have recognized that where evidence
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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. Bennett, [] 303 A.2d 220 ([Pa. Super.] 1973)
(and cases cited therein). Appellant argues that the
Bennett principle is applicable here. We do not
agree.
The Bennett principle is applicable only where
the party having the burden of proof presents
testimony to support that burden which is either so
unreliable or contradictory as to make any verdict
based thereon obviously the result of conjecture and
not reason. In the facts of the Bennett case, the
Commonwealth had predicated its case upon the
evidence of one individual. The record clearly
established that the testimony of that witness was so
contradictory as to render it incapable of reasonable
reconciliation and therefore the court properly
refused to allow a verdict of guilt to stand.
Farquharson, 354 A.2d at 550 (most internal citations omitted).
Our High Court applied the above holding of Farquharson in
Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), to reverse the
appellant’s conviction of forcible rape. In Karkaria, the appellant was
charged by private criminal complaint based upon his alleged rape of his
younger stepsister. Id. at 1167. At trial, the Commonwealth’s case rested
entirely upon the testimony of the fourteen-year-old alleged victim, who
testified that the rapes occurred on weekends when her mother and
stepfather were out and the appellant was babysitting her. Id. at 1168.
She denied that her other stepbrother, the appellant’s biological brother was
in the house at the time. Id. It was uncontested, however, that pursuant
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to the custody arrangement between the appellant’s parents, the appellant
and his brother were always in the home on the same weekends. Id. It
was likewise uncontested that the alleged victim’s mother and stepfather
only went out on the weekends. Id. at 1171. Moreover, although the
alleged victim testified that the rapes occurred when the appellant babysat
her, she also acknowledged that during the timeframe of the alleged rapes,
she was old enough to watch herself and the appellant no longer acted as
her babysitter. Id. at 1168. The Commonwealth presented no physical
evidence or reports made regarding the alleged rapes. Id. at 1169, 1171.
The Karkaria Court concluded:
The total failure of the Commonwealth to present
any evidence that a single act of intercourse
occurred during the [timeframe alleged] casts
serious doubt upon the jury’s ability to reasonably
conclude that any criminal activity occurred during
the time period charged.
* * *
[Therefore,] we are compelled to conclude that
the evidence presented at trial when carefully
reviewed in its entirety, is so unreliable and
contradictory that it is incapable of supporting a
verdict of guilty, and thus, is insufficient as a matter
of law. Having reached this conclusion after careful
and meticulous review of the record presented to
this Court, we find that the verdict of the jury was
not based on anything more than speculation and
conjecture.
Id. at 1171-72 (footnote omitted).
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This does not mean that any case involving allegedly contradictory or
inconsistent testimony warrants consideration (let alone reversal) on
sufficiency grounds. Rather, as our Supreme Court stated in
Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), “the critical inquiry”
in resolving a sufficiency claim is
whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.
But this inquiry does not require a court to “ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.”
Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. This familiar standard gives full
play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Once a defendant has
been found guilty of the crime charged, the
factfinder’s role as weigher of the evidence is
preserved through a legal conclusion that upon
judicial review all of the evidence is to be
considered in the light most favorable to the
prosecution. The criterion thus impinges upon “jury”
discretion only to the extent necessary to guarantee
the fundamental protection of due process of law.
[A] reviewing court “faced with a record of
historical facts that supports conflicting inferences
must presume – even if it does not affirmatively
appear in the record – that the trier of fact resolved
any such conflicts in favor of the prosecution, and
must defer to that resolution.”
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Id. at 1163-64 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 326
(1979) (emphasis in the original)). The Brown Court clarified that despite
its holding in Karkaria,
[the] Court considers questions regarding the
reliability of the evidence received at trial to be
within the province of the finder-of-fact to resolve,
and our Court will not, on sufficiency review, disturb
the finder-of-fact’s resolution except in those
exceptional instances, as discussed previously,
where the evidence is so patently unreliable that the
jury was forced to engage in surmise and conjecture
in arriving at a verdict based upon that evidence.
Id. at 1165.
The case before us is not one that involves evidence that “is so
patently unreliable that the jury was forced to engage in surmise and
conjecture in arriving at a verdict based upon that evidence.” Id. Ms. Smith
testified that Grant entered her house without her permission, in direct
violation of the existing PFA, and that she observed him standing in her
living room. N.T., 11/26/13, at 13-16. Ms. Smith’s friend and former
coworker testified to seeing Grant in Ms. Smith’s home while Ms. Smith was
not present around the same time as the break-in. Id. at 46-47. Ms. Smith
further testified that there had been a series of break-ins at her home, which
she attributed to Grant, and that Grant called her numerous times, leaving
sixteen messages on her home phone and eighteen on her cellphone. Id. at
24-27. Ms. Smith believed that Grant surreptitiously obtained a copy of her
house keys while they were dating, and although she changed her locks
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several times, she later learned that because she purchased all of the locks
at the same Home Depot, the same key continued to work to unlock her
doors. Id. at 32-36. Grant presented no evidence to contradict Ms. Smith’s
claims.
The case boiled down to a question of whether the trial court, sitting
as factfinder, found Ms. Smith to be credible. As stated above, this is a
question of the weight to be accorded to the evidence, not its sufficiency.
Melvin, 103 A.3d at 43. “This Court cannot substitute its judgment for that
of the [factfinder] on issues of credibility.” Commonwealth v. DeJesus,
860 A.2d 102, 107 (Pa. 2004). As this is the only argument Grant presents
in support of his sufficiency claim, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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