Com. v. Johnson, K.

J-S77005-17
2018 PA Super 40COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KHAFRE RAHEEM JOHNSON,
Appellant No. 1128 MDA 2017
Appeal from the Judgment of Sentence Entered June 26, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000147-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 22, 2018
Appellant, Khafre Raheem Johnson, appeals from the judgment of
sentence of an aggregate term of 6-12 years’ incarceration, imposed
following his conviction for robbery, conspiracy, and related offenses.
Appellant challenges the sufficiency of the Commonwealth’s evidence
supporting his identification as the perpetrator of these crimes. After careful
review, we affirm.
The trial court summarized the facts adduced at trial as follows:
Three witnesses testified in this case. First, the victim Kory
Filson testified.3 He testified that at 10:30 p.m. on December 2,
2015, he was walking to a gas station in the area of Jackson
Street, Sunshine Alley, and Mount Rose Avenue. He described
the area as well[ ]lit by street[]lights and a garage light. While
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* Former Justice specially assigned to the Superior Court.
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Filson was walking, … Appellant and one other man approached
him from behind.
3 Mr. Filson did have a previous unsworn falsification
conviction in 2013.
Filson knew … Appellant before that night because he had
attended middle school with … Appellant's older brother and
because … Appellant was one or two classes behind Filson. In
fact, Filson had almost instantly recognized … Appellant when he
and the other man approached him.
The other man grabbed Filson from behind, and Appellant
stood in front of Filson. Appellant pulled out a handgun and told
Filson "to empty [Filson's] pockets."
During this incident, Appellant pointed the gun at Filson's
midsection. Then, Appellant and the other man went through
Filson's pockets and took all of the pockets' contents. For
example, they took his wallet, cell phone, pocket[ ]knife, $100 in
cash, credit cards, and a prescription. During the altercation,
Filson had feared for his life.
In fact, during the altercation, Filson said Appellant's name
and asked Appellant if he was serious, to which … Appellant
responded[,] "he was dead serious." Afterwards, the two men
ran down an alleyway, and Filson went several blocks to his
home, where he called the police with a second cell phone that
he had at home.
Officer Richard Morris ("Officer Morris") testified next. At the
time, Officer Morris was a patrolman for Spring Garden
Township, and he was working from 7:00 p.m. until 3:00 a.m.
that night. At about 10:45 p.m., Officer Morris was dispatched
for a robbery, and he met with Filson at South Albermarle
Street.
That night, Filson walked Officer Morris through what had
happened. For example, he took Officer Morris to the 700 block
of Sunshine Alley, just North of Jackson Street, which is where
Filson told the officer [that] the robbery occurred. Officer Morris
described the lighting in that vicinity as "very good for an alley….
It's a residential area, it's densely residential, a lot of ambient
lighting from the homes. I would say in an alley with the light
being what it was, looking at your face from here and there, I'd
have no problem identifying you…." During his testimony,
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Officer Morris noted that he had met Filson before. Further, he
explained that while Filson was normally an energetic and
talkative person, his personality that night was "very somber,
downtrodden, [and] he appeared scared to [the officer], beaten
down, if you will."
Lastly, Appellant testified. Appellant stated that he did not
know Filson, and that while he was in the middle school Filson
referred to, he did not attend the high school that Filson
described. Appellant stated he did not know where he was that
night specifically, but he was not in the area that the robbery
occurred. He pointed out that he lived on the other side of town
and did not have any reason to be in Spring Garden Township or
that part of town.24
24 During his testimony, Appellant acknowledged that he
was adjudicated in 2013 for retail theft and pled guilty to
theft by unlawful taking. He also acknowledged that in
2012 he pled guilty to receiving stolen property. These
convictions were pointed out for crimen falsi purposes only
during the trial.
Trial Court Opinion (“TCO”), 9/1/17, 2-6 (some footnotes omitted).
Police arrested Appellant on September 2, 2016. The Commonwealth
charged him with two counts of robbery, 18 Pa.C.S. § 3701(a)(1)(ii) and (iv)
(counts 1 & 3); one count of conspiracy to commit robbery, 18 Pa.C.S. § 903
(count 2); one count of theft by unlawful taking, 18 Pa.C.S. § 3921(a)
(count 4); one count of receiving stolen property, 18 Pa.C.S. § 3925(a)
(count 5); and one count of possession of firearm prohibited, 18 Pa.C.S. §
6105(a)(1) (count 6). Appellant proceeded to a non-jury trial on May 17,
2017. That same day, the trial court found him guilty on all counts except
for the firearm offense. On June 26, 2017, the trial court sentenced
Appellant to 6-12 years’ incarceration at count 1, and a concurrent term of
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5-10 years’ incarceration at count 2. The court merged the remaining
counts for sentencing purposes.
On July 5, 2017, Appellant filed a timely post-sentence motion, in
which he sought a motion for judgment of acquittal on sufficiency grounds,
and a motion for a new trial on weight-of-the-evidence grounds. The trial
court denied Appellant’s post-sentence motion on July 11, 2017. Appellant
filed a timely notice of appeal on July 18, 2017. He filed a timely, court-
ordered Pa.R.A.P. 1925(b) statement on August 8, 2017. The trial court
issued its Rule 1925(a) opinion on September 1, 2017.
Appellant now presents the following questions for our review:
I. Whether the Commonwealth failed to present sufficient
evidence to convict Appellant of robbery when the
Commonwealth only presented the unsubstantiated
allegation of the alleged victim without any independent
police investigation that indicated Appellant’s involvement
in any crime?
II. Whether the Commonwealth failed to present sufficient
evidence to convict Appellant of criminal conspiracy to
commit robbery when the Commonwealth only presented
the unsubstantiated allegation by the victim without any
independent investigation by the police indicating that
Appellant agreed with any other person to commit any
crime[?]
Appellant’s Brief at 4.
Both of Appellant’s claims concern the sufficiency of the evidence, for
which our scope and standard of review are well settled:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
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beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim[,] the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Appellant asserts that there was insufficient evidence supporting his
identity as the perpetrator of the robbery committed against the victim.
Appellant essentially argues that the victim’s testimony could not establish,
by itself, his identity as the perpetrator of the robbery. This argument has
no support in existing case law.
A victim’s in-court testimony, identifying the defendant as the
perpetrator of a crime, is by itself sufficient to establish the identity element
of that crime. See Commonwealth v. Patterson, 940 A.2d 493, 502 (Pa.
Super. 2007) (holding evidence sufficient to establish the identity of the
robber/burglar where “the complainant identified [the a]ppellant, in open
court, as one of the men that entered his home”); Commonwealth v.
Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (“[I]t is settled that a positive
identification by one witness is sufficient for conviction.”). Thus, Appellant’s
attempts to enhance his argument by asserting that the Commonwealth
failed to present any corroborating evidence to support the victim’s in-court
identification testimony does not establish that the identity evidence was
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insufficient. Moreover, Appellant’s assertion that the victim’s testimony was
contradicted by his own is irrelevant to our sufficiency analysis. “Variances
in testimony … go to the credibility of the witnesses and not the sufficiency
of the evidence.” Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa.
1981). Accordingly, we conclude that Appellant’s first claim lacks merit.
Next, Appellant asserts that the evidence was insufficient to establish
the existence of a conspiracy between himself and the other individual who
perpetrated the robbery of the victim. He argues that the only evidence of a
conspiracy came through the victim’s testimony, and that such testimonial
evidence is necessarily insufficient to prove the elements of conspiracy.
Essentially, Appellant rehashes his first sufficiency argument to attack the
explicit elements of conspiracy.
The Crimes Code defines the offense of conspiracy, in pertinent part,
as follows:
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
…
(e) Overt act.--No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
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conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S. § 903. Simplified, this requires proof of three elements: 1) an
agreement, 2) shared criminal intent, and 3) an overt act. See
Commonwealth v. Murphy, 795 A.2d 1025, 1037–38 (Pa. Super. 2002).
Moreover,
[t]he essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.
Thus, a conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators sufficiently prove the
formation of a criminal confederation. The conduct of the parties
and the circumstances surrounding their conduct may create a
web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt. Even if the conspirator did not act
as a principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.
Id. at 1038 (quoting Commonwealth v. Johnson, 719 A.2d 778, 784-85
(Pa. Super. 1998) (en banc)).
Turning to Appellant’s claim, we again reject the notion that a single
witness’s testimony, alone, cannot be sufficient to establish every element of
a criminal offense; it has no basis in constitutional, statutory, or case law.1
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1 Notably, Appellant makes no attempt to present this Court with case law
suggesting otherwise.
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To the contrary, a solitary witness’s testimony may establish every element
of a crime, assuming that it speaks to each element, directly and/or by
rational inference.
As to the content of a victim’s testimony, this Court has repeatedly
indicated that such testimony, if believed by the fact-finder, may be
sufficient to establish all the elements of a sexual offense.
In Commonwealth v. Gabrielson, … 536 A.2d 401 ([Pa.
Super.] 1988), this [C]ourt held that the uncorroborated
testimony of a rape victim, if believed by the jury, is sufficient to
support a rape conviction and no medical testimony is needed to
corroborate a victim's testimony if the testimony was rendered
credible by the jury. See also [Commonwealth v.] Trimble,
[615 A.2d 48, 50 (Pa. Super. 1992)] (where a five-year-old
victim's testimony that defendant placed his “weiner,” penis, in
her “tooter,” vaginal area, established penetration and supported
the rape conviction); see also Commonwealth v. Kunkle, …
623 A.2d 336, 338 ([Pa. Super.] 1993) (holding that
uncorroborated testimony of the sex offense victim may be
sufficient to establish the guilt of the accused); Commonwealth
v. Cody, … 584 A.2d 992 ([Pa. Super.] 1991) (holding that sex
offense victim's testimony alone provided sufficient evidence to
establish defendant's guilt of involuntary deviate sexual
intercourse, indecent assault, and corruption of minors beyond a
reasonable doubt); Commonwealth v. White, … 491 A.2d 252,
258 ([Pa. Super.] 1985); Commonwealth v. Stoner, … 425
A.2d 1145 ([Pa. Super.] 1981) (holding that the uncorroborated
testimony of a 12–year–old victim was sufficient to establish
defendant's guilt in a prosecution for statutory rape, involuntary
deviate sexual intercourse, and corrupting morals of a minor).
Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994).
The Crimes Code specifically expresses this principle in the context of
sexual offenses. See 18 Pa.C.S. § 3106 (“The credibility of a complainant of
an offense under this chapter shall be determined by the same standard as
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is the credibility of a complainant of any other crime. The testimony of a
complainant need not be corroborated in prosecutions under this
chapter. No instructions shall be given cautioning the jury to view the
complainant's testimony in any other way than that in which all
complainants' testimony is viewed.”) (emphasis added). However, this
Court is not aware of any case law suggesting that the principle itself does
not apply across the whole spectrum of criminal offenses. There is no
universal, per se rule that a solitary witness’s testimony is incapable of
providing sufficient evidence of the commission of a crime.
Support for this principle in Pennsylvania case law is not merely
confined to the realm of sexual offenses within the scope of 18 Pa.C.S. §
3106. For instance, despite recognizing the inherent credibility issues that
arise with the testimony of accomplices, our Supreme Court has held that
“guilt or innocence may be predicated on uncorroborated testimony of an
accomplice.” Commonwealth v. Hudson, 414 A.2d 1381, 1385 (Pa.
1980). It would be a strange result if an accomplice to a crime could
render sufficient testimony to convict, without any corroboration, but a
victim of a crime could only render sufficient testimony when a sexual
offense was involved.
Section 3106 became effective in 1976. Nevertheless, the principle
contained therein predated the legislative mandate, suggesting that the
statute merely codified, for a specific category of offenses, an existing legal
maxim that applied more broadly. For instance, in Commonwealth v.
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Kettering, 119 A.2d 580 (Pa. Super. 1956), this Court recognized that “[a]
conviction, from necessity, may rest upon the uncorroborated testimony of
a mere child….” Id. at 581 (emphasis added). While the Kettering Court
went on to caution that a factfinder should treat such testimony with great
scrutiny, nothing in the opinion suggested that, if ultimately believed by the
factfinder, the testimony was patently insufficient because it was
uncorroborated by other evidence, testimonial or otherwise. Although
Kettering did involve sexual misconduct, nothing in that decision suggested
that the rule expressed by the Court was limited to sexual offenses.
This rule was applied outside the context of sex offenses and
accomplice testimony in Commonwealth v. Davis, 132 A.2d 408 (Pa.
Super. 1957). In that case, Charles Hanner, a heroin addict, provided the
only testimony against Davis. He told the jury that Davis had delivered
heroin to him in July of 1954. The substance was “properly identified by his
testimony” as Hanner had testified to “his reaction when it was injected into
his blood stream.” Id. at 409. This Court held that “contrary to [Davis]'s
contention, the uncorroborated testimony of Hanner in this case was
sufficient to support [Davis]'s conviction of the unlawful possession and sale
of narcotics.” id. (relying on Commonwealth v. Aikens, 118 A.2d 205 (Pa.
Super. 1955)).
In Aikens, the defendant was convicted of drug trafficking offenses
under similar circumstances:
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The Commonwealth's case depended upon the testimony
of a drug addict. This witness testified that she had used heroin
daily over a long period of time; that she knew the effect of it;
and that the substance purchased by her from [Aikens] gave her
the effect of heroin. She further testified that she was a drug
addict; and that she was under sentence for the use and
possession of heroin which she had purchased from [Aikens].
The witness also testified that she had known [Aikens] for a
number of years and that [Aikens] gave her heroin from time to
time in 1953 until she became addicted. She began purchasing
heroin from [Aikens] in November, 1953, and thereafter
purchased on the average a bag of heroin a day, including the
months of November and December, 1954.
[Aikens] testified in her own behalf, and denied that she
ever sold, gave or delivered any drugs to the Commonwealth's
witness. [Aikens] claimed that the Commonwealth's witness had
not told the truth about [Aikens] because of an alleged incident
which occurred in the fall of 1953 over a small revolver.
[Aikens] said the witness asked her to hide the gun but she
refused, and that this was the cause of the witness' antagonistic
attitude.
Aikens, 118 A.2d at 206–07.
On appeal, inter alia, Aikens claimed that a drug addict’s
uncorroborated testimony was insufficient to sustain her conviction. The
Aikens Court rejected this claim, indicating that any defects in the
credibility of a witness was “for the determination of the jury or a judge
sitting without a jury.” Id. at 208. The Court then held that: “If the trier of
fact, who sees and hears the witness, is satisfied that the witness was
testifying truthfully, even though a drug addict, then such testimony may be
sufficient to warrant a conviction of a defendant for the sale of drugs.” Id.
Synthesizing these cases, we hold that the uncorroborated testimony
of a single witness is sufficient to sustain a conviction for a criminal offense,
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so long as that testimony can address and, in fact, addresses, every element
of the charged crime. There may be certain instances where particular
elements of certain crimes fall outside the scope of this general rule,2 but no
such elements are involved in the case at hand. Moreover, our holding
should not be understood to affect, whatsoever, the weight a factfinder
assigns to uncorroborated testimony of a solitary witness. Such a
circumstance should be a significant, but not a dispositive factor when
assessing credibility. Our decision today concerns only claims made under
the auspices of a challenge to the sufficiency of such evidence.
Turning back to the particulars of the case at hand, the trial court
indicates that:
Viewed in the light most favorable to the Commonwealth
as verdict winner, there was sufficient evidence to find Appellant
guilty of [c]onspiracy to [c]ommit [r]obbery. Here, overt acts
were committed, for example when Appellant pointed the gun at
[the victim] during the course of a theft and when Appellant and
the other man took the contents of [the victim]'s pockets.
The circumstances of the robbery clearly show that there
was an agreement to commit the robbery based on the
circumstances, including … Appellant's and other man's acts
during the robbery of [the victim]. Again, given all the evidence
and testimony, this [c]ourt found [the victim]'s testimony to be
unbiased and more credible than Appellant's testimony.
Therefore, there was sufficient evidence to find Appellant guilty
of [c]onspiracy to [c]ommit [r]obbery.
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2 We leave it for future decisions to determine which offenses contain
elements that fall outside the general rule.
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TCO at 10. We agree. The victim’s testimony regarding Appellant’s and his
cohort’s behavior during the robbery was sufficient to show a shared intent
and implicit agreement to commit a robbery, as well as multiple overt acts
perpetrated in furtherance of that conspiracy. Accordingly, Appellant’s
second claim also lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2018
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