Com. v. Villanueva, B., III

J-S14020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BENJAMIN VILLANUEVA, III
Appellant No. 246 MDA 2015
Appeal from the Judgment of Sentence December 23, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001712-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 04, 2016
Appellant, Benjamin Villanueva, III, appeals from the judgment of
sentence entered December 23, 2014, in the Court of Common Pleas of
Lycoming County. We affirm.
We take the underlying history of this matter from the trial court’s
opinion.
On October 11, 2009, two masked individuals entered the
Sunoco A-Plus in South Williamsport, Pennsylvania…. They
assaulted the clerk and stole numerous packs of cigarettes and
approximately $150 in cash. When the suspects left the Sunoco,
they headed west past Citizens and Northern Bank.
The clerk provided a description of the individuals to the
police, who also viewed the suspects on video surveillance from
the Sunoco and the ATM at the front of the bank. One of the
individuals was an approximately 5’8” tall male, who was
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S14020-16
wearing a gray hoodie, a flesh-toned scary Halloween mask,
dark colored gloves and faded blue jeans. The other individual
was a taller male, who was wearing a green coat, a dark colored
shirt with white on the front of it, a dark colored ski mask, dark
colored gloves, and faded blue jeans. The eyeholes of the ski
mask appeared to be rather large with white or gray material
visible underneath, not exposed skin. The taller individual was
also carrying a bright blue tote bag with white lettering or
symbols on the side of it.
The police also found two cigarette butts on the ground in
front of the bank. The butts were orange/tan in color and had
two gold bands near the burnt end of the butts.
Unfortunately, the police were not able to locate and
apprehend the suspects on October 11, 2009.
Two days later, on October 13, 2009, the South
Williamsport police were dispatched to the 700 block of
Matthews Boulevard to investigate a “suspicious person” report.
There were two suspicious individuals seen behind residences
near the Woodlands Bank on West Southern Avenue and a third
individual in a gold vehicle. It was also reported that one of the
individuals was hiding behind a nearby dumpster.
The police stopped the gold vehicle and identified the
driver as Stephen Moore. The police ran the license plate, which
came back to a different driver registered to Philip Hall’s mother.
Philip Hall was a friend of Moore’s and an acquaintance of
Appellant’s.
Appellant, who fit the description of one of the suspicious
individuals, was walking on the other side of the street and
keeping a very close eye on the police during the traffic stop of
the gold vehicle. Prior the vehicle being stopped, Appellant had
been walking by the vehicle. When the police made contact with
Appellant, he gave them a false name. Appellant also asked the
police if “Stephen” got “locked up.”
Officers walked over to the dumpster to look for the other
suspicious person. Near the dumpster, the police found a flesh-
colored Halloween mask and a pair of dark colored gloves. The
Halloween mask matched the mask worn by the shorter suspect
from the Sunoco robbery. A short distance west of the mask,
the police discovered a white Halloween mask with reddish
synthetic hair. Wrapped inside the mask was a loaded .22 caliber
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handgun. It was apparent that the masks and other items had
been recently placed there, as it was approximately 7:20 a.m.
and the ground was covered in dew but the masks and other
items of interest were not.
The police impounded the gold vehicle and obtained a
search warrant. In the vehicle, the police found a black ski mask,
a blue tote bag with white lettering, a green coat, and two pairs
of faded blue jeans, which were consistent with the clothing
worn and the bag used by the Sunoco robbers. Inside the ski
mask was a long, red synthetic fiber similar to the reddish
synthetic hair on the white Halloween mask. The police also
found a packet of cigarettes in the vehicle, the color and
markings of which matched the color and markings of cigarette
butts recovered … in front of the bank on the they day of the
Sunoco robbery.
DNA was obtained from inside the Halloween masks. The
police obtained a warrant to take hair and blood samples from
Appellant so DNA testing and analysis could be conducted to
determine if the DNA in either of the Halloween masks matched
Appellant’s DNA. Although the DNA sample from the white mask
with the reddish synthetic hair was a mixture of DNA from more
than one individual, Appellant’s DNA matched the DNA of the
main contributor to that mixture. DNA from the flesh-colored
Halloween mask matched Philip Hall.
Trial Court Opinion, 6/24/15 at 1-3.
Appellant was subsequently arrested and charged with robbery, theft
by unlawful taking, receiving stolen property, simple assault, conspiracy to
commit those crimes, and recklessly endangering another person. Appellant
filed an omnibus pretrial motion to suppress the evidence obtained pursuant
to the search warrant. Following a hearing, the trial court denied Appellant’s
suppression motion. Appellant also filed a motion in limine to preclude
evidence of his prior conviction for conspiracy to commit robbery with
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Stephen Moore, who was the driver of the gold vehicle impounded in this
case. The trial court also denied that motion.
Appellant waived his right to a jury trial. Following a bench trial, the
trial court convicted Appellant of all charges and sentenced him to an
aggregate term of 5 to 12 years of imprisonment. Appellant thereafter filed
timely post sentence motions, which the trial court denied. This timely
appeal followed.
Appellant raises the following issues for our review.
I. Whether the trial court erred in denying [Appellant’s]
omnibus pre-trial motion?
II. Whether the trial court erred in denying [Appellant’s]
motion in limine filed on August 6, 2013 which sought to
preclude the admission of a prior bad act?
III. Whether the evidence presented by the Commonwealth at
trial was insufficient to establish the elements of each of
the offenses charged?
IV. Whether the verdict of the jury was against the weight of
the evidence to the extent it shocks one’s sense of justice?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
Appellant first argues that the trial court erred when it denied his
motion to suppress physical evidence. We review the denial of a motion to
suppress physical evidence as follows.
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the prosecution
and so much of the evidence for the defense as remains
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uncontradicted when read in the context of the record as a
whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Further, [i]t is within the suppression court’s sole province
as factfinder to pass on the credibility of witnesses and the
weight to be given their testimony.
Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted).
A search warrant cannot be used as a general
investigatory tool to uncover evidence of a crime. In re Casale,
512 Pa. 548, 517 A.2d 1260, 1263 (1986); Commonwealth ex
rel. Ensor v. Cummings, 416 Pa. 510, 207 A.2d 230, 231
(1965). Nor may a warrant be so ambiguous as to allow the
executing officers to pick and choose among an individual’s
possessions to find which items to seize, which would result in
the general “rummaging” banned by the Fourth Amendment.
See Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d
24 (1982) (quoting Marron v. United States, 275 U.S. 192,
195, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). Thus, Pa.R.Crim.P. 205
specifies the necessary components of a valid search warrant.
The comment to Rule 205 provides, however, that even though
general or exploratory searches are not permitted, search
warrants should “be read in a common sense fashion and should
not be invalidated by hypertechnical interpretations. This may
mean, for instance, that when an exact description of a
particular item is not possible, a generic description will suffice.”
Pa.R.Crim.P. 205 (cmt.). Embracing this approach, we have held
that “where the items to be seized are as precisely identified as
the nature of the activity permits ... the searching officer is only
required to describe the general class of the item he is seeking.”
Commonwealth v. Matthews, 446 Pa. 65, 85 A.2d 510(1971).
A warrant is defective when its explanatory narrative does
not describe as clearly as possible those items for which there is
probable cause to search. Grossman, 521 Pa. 290, 555 A.2d
896. In assessing the validity of a description contained in a
warrant, a court must initially determine for what items there
was probable cause to search. Id. at 900. “The sufficiency of the
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description [in the warrant] must then be measured against
those items for which there was probable cause. Any
unreasonable discrepancy between the items for which there was
probable cause [to search] and the description in the warrant
requires suppression.” Id.
Commonwealth v. Rega, 933 A.2d 997, 1011-1012 (Pa. 2007).
Appellant’s second issue challenges the admissibility of evidence. We
note that “the admission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial court
clearly abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100,
1106 (Pa. Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation
omitted). In reviewing a court’s decision to permit evidence of alleged prior
bad acts, we note that it is impermissible to present evidence at trial of a
defendant’s prior bad acts or crimes to establish the defendant’s criminal
character or proclivities. See Pa.R.E. 404(b); Commonwealth v. Hudson,
955 A.2d 1031, 1034 (Pa. Super. 2008). Such evidence, however, may be
admissible “where it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant’s character.” Commonwealth v.
Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted). It is
well settled that “[e]ven if prejudicial information was considered by the trial
court, a judge, as fact finder, is presumed to disregard inadmissible evidence
and consider only competent evidence.” Commonwealth v. Fears, 836
A.2d 52, 71 n.19 (Pa. 2003) (citation omitted).
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Appellant next claims that he was incorrectly identified as the
perpetrator of the crimes for which was convicted. The following standard
governs our review of a challenge to the sufficiency of the evidence.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. 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, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted).
The factfinder, 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. See Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa.
Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015). Furthermore, the
Commonwealth may sustain its burden by means of wholly circumstantial
evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008).
Lastly, Appellant argues that his convictions were against the weight of
the evidence. A challenge to the weight of the evidence “concedes that the
evidence is sufficient to sustain the verdict, but seeks a new trial on the
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ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one's sense of justice.”
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (citation omitted).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. Moreover, 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. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotes and citations omitted).
We have reviewed Appellant’s issues raised on appeal, along with the
briefs of the parties, the certified record and the applicable law. Having
determined that the Honorable Marc F. Lovecchio’s June 24, 2015 opinion
ably and comprehensively disposes of Appellant’s issues raised on appeal,
with appropriate reference to the record and without legal error, we will
affirm based on that opinion. See Trial Court Opinion, 6/24/15 at 5-19.
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J-S14020-16
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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Circulated 03/09/2016 11:25 AM
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COMPLIANCE WITH RULE 1925{a) OF
THE RULES OF APPELLATE PROCEDURE
This opinion is written in support of this court's judgment of sentence dated
December 23, 2014, which became final when the court denied Appellant's post sentence
motion on January 28, 2105. The relevant facts follow.
On October 11, 2009, two masked individuals entered the Sunoco A-Plus in
South Williamsport, Pennsylvania to rob it. They assaulted the clerk and stole numerous
packs of cigarettes and approximately $150 in cash. When the suspects left the Sunoco, they
headed west past Citizens & Northern Bank.
The clerk provided a description of the individuals to the police, who also
viewed the suspects on video surveillance from the Sunoco and the A TM at the front of the
bank. One of the individuals was an approximately 5'8" tall male, who was wearing a gray
hoodie, a flesh-toned scary Halloween mask, dark colored gloves and faded blue jeans. The
other individual was a taller male, who was wearing a green coat, a dark colored shirt with
white on the front of it, a dark colored ski mask, dark colored gloves, and faded blue jeans.
1
The eyeholes of the ski mask appeared to be rather large with white or gray material visible
underneath, not exposed skin. The taller individual was also carrying a bright blue tote bag
with white lettering or symbols on the side of it.
The police also found two cigarette butts on the ground in front of the bank,
The butts were orange/tan in color and had two gold bands near the burnt end of the butts.
Unfortunately, the police were not able to locate and apprehend the suspects
on October 11, 2009.
Two days later, on October 13, 2009, the South Williamsport police were
dispatched to the 700 block of Matthews Boulevard to investigate a "suspicious person"
report. There were two suspicious individuals seen behind residences near the Woodlands
Bank on West Southern Avenue and a third individual in a gold vehicle. It was also reported
that one of the individuals was hiding behind a nearby dumpster.
The police stopped the gold vehicle and identified the driver as Stephen
Moore. The police ran the license plate, which came back to a different vehicle registered to
Philip Hall's mother. Philip Hall was a friend of Moore's and an acquaintance of
Appellant's.
Appellant, who fit the description of one of the suspicious individuals, was
walking on the other side of the street and keeping a very close eye on the police during the
traffic stop of the gold vehicle. Prior to the vehicle being stopped, Appellant had been seen
walking by the vehicle. When the police made contact with Appellant, he gave them a false
name. Appellant also asked the police if "Stephen" got "locked up."
Officers walked over to the dumpster to look for the other suspicious person.
2
Near the dumpster, the police found a flesh-colored Halloween mask and a pair of dark
colored gloves. The Halloween mask matched the mask worn by the shorter suspect from the
Sunoco robbery. A short distance west of the mask, the police discovered a white Halloween
mask with reddish synthetic hair. Wrapped inside the mask was a loaded .22 caliber
handgun. It was apparent that the masks and other items had been recently placed there, as it
was approximately 7:20 a.m. and the ground was covered in dew but the masks and other
items of interest were not.
The police impounded the gold vehicle and obtained a search warrant. In the
vehicle, the police found a black ski mask, a blue tote bag with white lettering, a green coat,
and two pairs of faded blue jeans, which were consistent with the clothing worn and the bag
used by the Sunoco robbers. Inside the ski mask was a long, red synthetic fiber similar to the
reddish synthetic hair on the white Halloween mask. The police also found a packet of
cigarettes in the vehicle, the color and markings of which matched the color and markings of
cigarette butts recovered from in front of the bank on the day of the Sunoco robbery.
DNA was obtained from inside the Halloween masks. The police obtained a
warrant to take hair and blood samples from Appellant so DNA testing and analysis could be
conducted to determine if the DNA inside either of the Halloween masks matched
Appellant's DNA. Although the DNA sample from the white mask with the reddish
synthetic hair was a mixture of DNA from more than one individual, Appellant's DNA
matched the DNA of the main contributor to that mixture. DNA from the flesh-colored
Halloween mask matched Philip Hall.
Appellant was arrested and charged with robbery, theft by unlawful taking,
3
receiving stolen P!operty, simple assault by physical menace, conspiracy to commit these
offenses, and recklessly endangering another person related to the Sunoco robbery on
October 11, 2009. The alleged co-conspirator for each conspiracy count was Philip Hall.
Appellant filed an omnibus pretrial motion which included a motion to
suppress. Appellant asserted that the search warrant for his hair and blood was not based on
probable cause, rendering the search and seizure illegal and mandating the suppression of any
evidence obtained from these samples. The court denied Appellant's motion in an Opinion
and Order dated May 22, 2013.
Appellant also filed a motion in limine to preclude any references to his
conviction for conspiracy to commit robbery of Woodlands Bank, because it was not relevant
or any relevance was far outweighed by the prejudicial effect. This conspiracy conviction
was based on the events that occurred on October 13, 2009 with Appellant and Stephen
Moore. The court denied Appellant's motion in limine in an Opinion and Order dated
October 15, 2013 and docketed October 29, 2013.
Appellant waived his right to a jury trial, and a bench trial was held October
21-22, 2014. The court found Appellant guilty of all the charges and sentenced him to an
aggregate term of 5· 12 years' incarceration in a state correctional institution.
Appellant filed a timely post sentence motion, which challenged the court's
denial of the motion to suppress contained in his omnibus pretrial motion, the court's denial
of his motion in limine, the sufficiency of the evidence, and the weight of the evidence. The
court denied Appellant's post sentence motion in an Opinion and Order entered on January
28, 2015.
4
Appellant filed a timely notice of appeal.
Appellant first contends that the court erred in denying his omnibus pretrial
motion which sought to suppress the seizure of his hair and blood samples. The court cannot
agree.
The police obtained a search warrant for the hair and blood samples, and the
affidavit for that warrant set forth probable cause. As the court stated in its Opinion and
Order entered May 22, 2013:
Rule 203 of the Pennsylvania Rules of Criminal Procedure provides in
pertinent part: .
(B) No search warrant shall issue but upon probable cause supported
by one or more affidavits sworn to before the issuing authority in person or
using advanced communication technology. The issuing authority, in
determining whether probable cause has been established, may not consider
any evidence outside the affidavits.
*
(D) At any hearing on a motion for the return or suppression of
evidence, or for suppression of the fruits of evidence, obtained pursuant to a
search warrant, no evidence shall be admissible to establish probable cause
other than the affidavits provided for in paragraph (B).
Pa.R.Crim.P. 203 (B), (D).
In analyzing whether a warrant is supported by probable cause, the
court is confined to the four comers of the affidavit. Commonwealth v.
Coleman, 830 A.2d 554, 560 (Pa. Super. 2003), app. denied, 864 A.2d 1203(Pa. 2004).
The test for determining whether a search warrant is supported by
probable cause is the totality of the circumstances.
Pursuant to the totality of the circumstances test ... the task of an
issuing authority is simply to make a practical, common-sense decision
whether, given all of the circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place .... It is the duty of a court reviewing an
issuing authority's probable cause determination to ensure that the magistrate
5
had a substantial basis for concluding that probable cause existed. In so doing,
the reviewing court must accord deference to the issuing authority's probable
cause determination, and must view the information offered to establish
probable cause in a common sense, non-technical manner.
* * * *
[Further.] a reviewing court [is] is not to conduct a de novo review of
the issuing authority's probable cause determination but [is] simply to
determine whether or not there is substantial evidence in the record supporting ·
the decision to issue the warrant.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 655 (Pa. 2010),
quoting Commonwealth v. Torres, 564 Pa. 886, 764 A.2d 532, 537-38, 540
(200l)(citations omitted); see also Commonwealth v. Martinez, 2013 PA
Super. 102 (May 2, 2013).
The [c]ourt does not hesitate in concluding that the affidavit
establishes probable cause to believe that evidence of a crime would be found
by collecting DNA from [Appellant]. More specifically, pursuant to the
totality of the circumstances test and making a practical, common-sense
decision, all of the circumstances set forth in the affidavit support a finding
that there was a fair probability contraband or evidence of a crime would be
found on [Appellant].
A robbery occurred on October 11, 2009 in South Williamsport. One
of the suspects was wearing a ski mask, and the other was wearing "a scary
Halloween mask." In an area where the suspects fled, the police found
cigarette butts that were distinctive.
Subsequent investigation confirmed that one of the suspects was
wearing a green coat, a dark colored ski mask, dark gloves and faded blue
jeans. The suspect was also carrying a blue tote bag with white lettering or
symbols on the side of it. The other suspect was wearing a "scary Halloween
mask, dark colored gloves and faded blue jeans." A few days later police
responded to suspicious activity near a bank located in South Williamsport.
One of the suspects was apparently hiding behind a dumpster. Another suspect
was the driver of a gold vehicle.
[Appellant], who fit the description of one of the suspects, was stopped
and questioned by the police. He asked if Stephen, the driver of the vehicle,
got locked up. Furthermore, he had been seen walking by the vehicle.
Moreover, during the incidents, police officers found a rubber Halloween
mask and a pair of dark colored gloves near a dumpster where one of the
suspects was reportedly hiding. The mask matched the mask worn by one of
the earlier robbery suspects. As well, officers located another Halloween mask
nearby. Located in this Halloween mask was a reddish synthetic hair, as well
as a handgun. It was apparent to the officers that the masks had recently been
6
placed there.
A subsequent search of the vehicle revealed numerous items consistent
with items utilized by the individuals who robbed the store. These items
included a ski mask, red synthetic hairs, a bright blue tote bag with white
writing on the side, cigarettes with similar color and markings, a green coat, a
black ski mask and two pairs of faded blue jeans.
The totality of the circumstances demonstrates that a robbery occurred
at which the perpetrators wore particular clothing and donned ski masks and
Halloween-type masks. Within a few days, police officers discovered a vehicle
in which similar clothing, a similar mask and other similar items were found.
Moreover, police found other items related to the robbery in the area where
[Appellant] was located. Finally, and determinatively, [Appellant] was
connected to both the initial robbery and the vehicle in which the inculpatory
items were found. His description was similar, he referred to the driver of the
automobile by first name, he inquired whether the driver was "locked up" and
he was seen near the vehicle. Certainly, upon reviewing the affidavit, there
was a fair probability that evidence of a crime would be found through
obtaining hair samples and blood or oral swabs from [Appellant] for DNA
comparison.
Trial Court Opinion (T.C.O.), 5/22/13, at 4-7.
Appellant next contends that the court erred in denying his motion in limine
which sought to preclude his conviction for a prior robbery, because it only showed his
criminal propensity and the relevance of the conviction was far outweighed by its prejudicial
effect. Again, the court cannot agree.
The conviction was relevant to tie Appellant to the white Halloween mask
with the red synthetic hair and the ski mask, coat and other items that the police recovered
from the vehicle registered to Philip Hall's mother but which was being driven by Stephen
Moore. This evidence, in conjunction with other evidence, showed that Appellant was one of
the individuals who robbed the Sunoco.
It was the Commonwealth's theory that Appellant was the taller individual in
the Sunoco robbery and that he wore the white Halloween mask underneath the black ski
7
mask. This theory was supported by : the still image from the A TM video surveillance that
showed something white in the eyeholes of the black ski mask worn by the taller suspect; the
red synthetic fibers that were found inside the black ski mask; the lab analysis that these red
fibers and the red synthetic hair from the white Halloween mask were visually,
microscopically, and chemically consistent; and the expert testimony that Appellant's DNA
matched the DNA obtained from inside the white Halloween mask.
While there was ample evidence to connect Appellant to the white Halloween
mask, the Commonwealth needed to link Appellant and/or the white Halloween mask to the
black ski mask, because the person involved in the Sunoco robbery was wearing a black ski
mask with white showing in the eyeholes.
The evidence was not admitted to show that Appellant had a propensity to
commit robberies, but was admitted to show the identity of the person who wore the black ski
mask and green coat in the Sunoco robbery and to indirectly establish a connection between
Appellant and Philip Hall.
Unfortunately for Appellant, the "bank situation" which resulted in his
conviction for conspiracy to commit robbery with Stephen Moore and the Sunoco robbery
were intertwined, because the police investigation of the "bank situation" led to the discovery
of various items used during the commission of the Sunoco robbery. Although Appellant's
inquiry into whether Stephen got locked up shows that he knew Stephen Moore, it did not
link Appellant to the gold Chrysler and its contents in the same manner or to the same extent
that his conspiracy conviction did.
Appellant was walking around outside when the police arrived to investigate
8
the suspicious individuals and vehicle. If the court had only permitted the Commonwealth to
introduce Appellant's inquiry about Stephen, Appellant could have attempted to portray the
query as merely expressing concern for a friend or acquaintance. It did not provide as strong
of a link to the vehicle and its contents as an admission that Appellant and Stephen Moore
were co-conspirators on the date and at the time when Stephen Moore was operating a
vehicle which contained some of the clothing that matched some of the clothing worn by the
Sunoco robbers two days earlier. The vehicle also bore a registration plate belonging to
Philip Hall's mother's Dodge Caravan. Therefore, Appellant's conspiracy conviction was an
important link in the chain of evidence to connect him to Philip Hall and the clothing worn
by the perpetrators of the Sunoco robbery.
Appellant also claims that even if the evidence was relevant, its relevance was
outweighed by its potential for prejudice. Although the court may exclude relevant evidence
if its probative value is outweighed by a danger of unfair prejudice, see Pa.RE. 403,
prejudice in this context does not mean harmful to Appellant's case. Commonwealth v. Page,
965 A.2d 1212, 1220 (Pa. Super. 2009). '" Unfair prejudice' means a tendency to suggest a
decision on an improper basis or to divert the jury's attention away from its duty of weighing
the evidence impartially." Pa.R.E. 403, comment. The court was not required to sanitize the
trial. Page, supra. It was merely required to ensure that the evidence was only used for
proper purposes, and not for propensity, which could be accomplished through an appropriate
cautionary instruction. See Commonwealth v. Hairston, 84 A.2d 657, 664-67 (Pa.
2014)( evidence of arson admissible to show the appellant's consciousness of guilt and intent
to commit first-degree murder; trial court's cautionary instruction minimized the likelihood
9
that arson evidence inflamed the jury or caused it to convict the appellant on an improper
basis). Moreover, Appellant ultimately waived his right to a jury trial and proceeded to trial
before the court. The court fully understood the limited purposes for which this evidence was
admissible. The court did not consider this evidence for Appellant's propensity to commit
robberies; it only considered this evidence to the extent it linked him to the items worn and
used by the perpetrators of the Sunoco robbery.
Appellant next asserts that the evidence presented by the Commonwealth was
. .
insufficient to establish the elements of each of the offenses charged when there was no
competent evidence to identify Appellant as the individual who committed the robbery. The
court thoroughly addressed this issue in its Opinion and Order entered January 28, 2015. For
the benefit of the parties and the appellate courts, the court will reprint that Opinion here with
minor changes.
On October 11, 2009 Kimberly Frey was working as a cashier at
Sunoco
A-Plus in South Williamsport, Pennsylvania. (N.T., 10/21/14, at 12-
13). Two individuals entered the store and robbed her of cigarettes and cash.
She described the two assailants as one being shorter, like 5 '7" or 5 '8", and
the other one probably about 6'. (Id. at 15). They had "Halloween masks on,
gloves and like a duffle bag." (Id.). She described her height as 5'7". (Id. at
16).
On cross-examination, Ms. Frey admitted that she believed that the
robbery was committed by two white males because the voices sounded
familiar and "the eyes." (Id. at 18, 19, 21).
The manager of the A-Plus Sonoco, Michael Gardner, testified that at
the time of the offense the store had a video surveillance system. (Id. at 24).
The video from the evening as well as still shots were shown to the court.
The video depicted two individuals robbing Ms. Frey. The shorter individual
wore a Halloween mask. The taller individual wore a black ski mask with
something whitish or grayish or both under it. It did not appear to be flesh
under the black ski mask. The taller individual also wore a green jacket and
black gloves and was carrying a blue bag with white lettering.
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Corporal Carl J. Finnerty of the South Williamsport Police
Department testified that he responded to the robbery on October 11, 2009.
He was informed that the actors turned left after they exited the store.
Citizens and Northern Bank was located in this area and he accessed
video footage from the ATM at the front of the bank. (Id. at 33). A still
photograph from the video was provided to the Court to view. It depicted an
individual wearing a black ski mask with a white or gray material under the
eyeholes. (Id. at 34).
Roy Snyder, a retired police officer from the city of Williamsport next
testified on behalf of the Commonwealth. He was a canine handler and he
and his police dog tracked the scent of the perpetrators. (Id. at 36-3 7).
According to Mr. Snyder, the trail of the perpetrators went left out of the
Sunoco, past the bank, across the street and then stopped. The perpetrators
apparently went south on Market Street to Parakeet Alley. (Id. at 45).
Terry O' Connell next testified. He was a Sergeant with the South
Williamsport Police Department in October of 2009. On October 13, 2009, a
few days after the A-Plus Sunoco incident, he was on duty and he was
dispatched to the 700 block of Matthews Boulevard for a "suspicious person
report." (Id. at49-50). It was approximately 7:21 in the morning and Sergeant
O'Connell made a traffic stop of a Stephen Moore (Id. at 50, 51). At the time
of the traffic stop, Sergeant O'Connell noticed [Appellant] "walking down
the street on the other side of the street and ... keeping a very close eye on
[them]." (Id. at 51).
As a result of the suspicious circumstances as explained by Sergeant
O'Connell, he and Chief Chris Miller of the Penn College Police Department
searched a rectangular area near the stop. (Id. at 53). In the search area, they
found a mask and gloves, another mask, a gun and a cell phone. All of the
items appeared to have been placed there relatively recently. (Id. at 54-59).
Sergeant O'Connell also obtained a search warrant for the vehicle
being driven by Mr. Moore. In the vehicle he uncovered numerous items of
interest. They included a blue "grocery type carrying bag", a black ski mask
that had a strand of red "nylon hair" that was "in the one mask that was
tucked under the wheel of the trailer", a green jacket and a cell phone
charger. (Id. at 59-62). .
The court had an opportunity to view the physical· evidence including
but not limited to the black ski mask, the blue bag and the green coat. The
eyeholes of the black ski mask appeared to have been cut out with the one
eyehole smaller than the other. (Id. at 63, 64). The bluebag had white
lettering on it as well as a white. symbol. (Id. at 65). The green coat had a
patch on the right sleeve right shoulder area as well as some writing on the
right upper chest area. (Id. at 66).
Chief Miller testified that he was assisting Sergeant O'Connell in
connection with the traffic stop on October 13. (Id. at 87). He confirmed the
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location of the items that were found in connection with the search and the
fact that they appeared to have been placed there recently because they were
dry while the grass was wet. (Id. at 89-91). Furthermore, he actually came in
contact with [Appellant], who was seen "walking in the area of the levy." (Id.
at 92). [Appellant] was walking away from where the items were located. In
fact, considering the direction that [Appellant] was walking when he first saw
Sergeant O'Connell, his reasonable to infer that [Appellant] backtracked
past where the incriminating evidence was located and toward the levy where
he was first confronted by law enforcement.
Sergeant David Pletz next testified. He was employed by the Penn
College Police and was asked to assist in connection with the investigation of
the incident that occurred after the A-Plus Sunoco robbery. (Id. at 96-97).
That morning he came in contact with [Appellant]. When he asked .
[Appellant] for identification, [Appellant] falsely told him that his name was
"Justin Gonzalez." (Id. at 97). After confronting [Appellant] with the falsity
of his representation, [Appellant] "changed a few things here and there." (Id.
at 97). As a result, [Appellant] was taken into custody where he eventually
provided his "true name." (Id. at 97-98).
Christine Hall testified that Stephen Moore and her son Phillip were
friends, and [Appellant] was an "acquaintance" of Phillip but a friend of Mr.
Moore. (Id. at 105-106).
Sergeant James Taylor testified. He was employed with the South
Williamsport Police Department in October of 2009. On October 11, 2009,
he was called in to assist in connection with the A-Plus Sunoco robbery
investigation. (Id. at 115). He confirmed that the taller of the two suspects
had the "black hood or ski mask" and a "greenish jacket." (Id. at 118, 119).
In connection with the investigation of the incident on October 13,
2009, Sergeant Taylor was present when the search warrant was served on the
impounded vehicle being driven by Mr. Moore. (Id. at 120). Based upon what
was recovered inside of that vehicle "it was apparent that those items - at
least they appeared to have been used in the A-Plus robbery." (Id.). The items
that looked consistent included the "blue Giant tote bag", "a black hood or
ski mask" and "an olive drab green coat." (Id. at 120, 121 ).
He also concluded that the masks found by Sergeant O'Connell were
connected to the incident at Sunoco. (Id. at 121). The "flesh tone" mask
appeared to be the same mask that the shorter of the two suspects was
wearing, while the white mask appeared similar to what the taller suspect was
wearing underneath the black ski mask. (Id. at 121-122).
Further, the still shot from the Citizen and Northern Bank video
depicted the green jacket, the black ski mask and even the white coloration
coming through the eyeholes. (Id. at 122). As well,~ red fiber similar to that
found on the one Halloween mask was found inside of the black ski mask.
(Id, at 122, 123). Indeed, the green jacket and tote bag recovered from the
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vehicle appeared to be the same as those used in the A-Plus Sunoco robbery.
(Id. at 124- 125). Sergeant Pletz also obtained DNA samples from
[Appellant]. (Id. at 125).
Sergeant Pletz testified regarding audio recordings from [Appellantj's
prison phone calls. (Id. at 132). The recordings, while not transcribed in the
record, were listened to by the court, He also testified that the prison intake
documents listed [Appellantj's height as 6'4". (Transcript, p. 134).
Brunee Coolbaugh, a forensic scientist with the Pennsylvania State
Police, testified as an expert in serology. (Id. at 148-149). She has worked in
serology since 2004. She examined both of the Halloween masks and the
black ski mask for saliva. She found saliva on each of the masks and cuts
samples out of each mask to be sent for DNA testing. (Id. at 153-155). She
consulted with a supervisor in DNA analysis and, in an effort to limit
backlogs and time constraints, it was determined that only the Halloween
masks would be submitted for DNA analysis because they were the better
samples. (Id. at 159). She confirmed that the Halloween mask with hair on it
and the red fibrous item that was found in the black ski mask were sent for
· trace analysis. (Id. at 161).
Nichols Plumley, a forensic scientist with the Pennsylvania State
Police Crime Lab at the Harrisburg Regional Laboratory, testified as an
expert in the field of trace analysis. (Id. at 165, 167). He scientifically
compared the red fiber from the ski mask with the fibers from the Halloween
mask. The red fibers were "visually, microscopically and chemically
consistent." (Id. at 168).
Angela Difiore, a forensic scientist who has worked for the
Pennsylvania State Police DNA Division since June of 2010, testified as an
expert in the field of forensic DNA. (Id. at 176). Ms. Difiore compared a
DNA profile from the one Halloween mask with a known profile from Phillip
Hall. Mr. Hall was included as a contributor to that major mixture and it was
"5.1 billion times more likely to be from" him than another individual. (Id. at
185-186). She was also able to develop a DNA profile for the same cut from
the front of the Halloween mask with red hair, (Id. at 187). This was a
"mixture profile" which was "consistent with three or more contributors"
although it had a "single major contributor." (Id.). She explained that one
individual contributed "distinctly more to the mixture." (Id.). The major
contributor's profile was "more prevalent than the other's profiles." (Id. at
188). This major component from the mask with the red hair was a match to
the known reference sample from [Appellant]. (Id. at 192).
On October 22, 2014, the trial continued. Among other witnesses, the
Commonwealth called Kevin Rentzel a special agent with the Federal Bureau
oflnvestigation. (N.T., 10/22/2014 at 8). He assisted in the investigation by.
'\ obtaining relevant telephone records and analyzing them through "Pen-Link
Software." (Id. at 24). Candidly, the [c]ourt did not find his testimony to be
13
particularly weighty, if at all. .
ln addressing a sufficiency of evidence claim, the court must
determine whether the evidence introduced at trial and all reasonable
inferences derived from the record, viewed in a light most favorable to the
Commonwealth as the verdict winner, are sufficient to establish all elements
of the offenses beyond a reasonable doubt. Commonwealth v. Sanchez, 36
A.3d 24, 37 (Pa. 2011). Moreover, the Commonwealth may sustain its burden
by wholly circumstantial evidence and need not preclude every possibility of
innocence. Commonwealth v. Orr, 38 A.3d 868, 872 (Pa. 201 l)(citing
Commonwealth v. Hansley, 24 A.2d 410, 416 (Pa. Super. 2011)). "Any
doubts regarding a [Appellant]'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 facts may be drawn from the combined circumstances." Id
The court concludes that there was abundant circumstantial evidence
sufficient to establish that [Appellant] was the perpetrator of the crimes to
which he was convicted.
First, the [Appellant] pled guilty to a conspiracy to commit a robbery.
This offense occurred on October 13, 2011 just two days after the October
11, 2009 incident at the Sunoco, Among the items found in [Appellant]'s co-
conspirator's vehicle were the same black ski mask, green jacket and blue
tote bag used in the A-Plus Sunoco robbery. Near where the vehicle was
stopped, the police found Halloween masks, one of which was identical to the
Halloween mask used in the A-Plus Sunoco robbery.
This crime to which the [Appellant] pled guilty tended to prove not
only a common scheme or plan but also the identity of the [Appellant] as one
of the perpetrators in both incidents. The court considered the elapsed time
between the crimes, the geographical proximity of the crime scenes and the
manner in which the crimes were committed or to be committed. See,
Commonwealth v. Judd, 897 A.2d 1224, 1232 (Pa. Super. 2006).
As the Superior Court recently noted in Commonwealth v. Tejada,
[103 A.2d 788 (Pa Super. 2015)], "[tjhe Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence actually received
must be considered. Finally, the finder 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." [Id. at 792-93], citing
Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).
The video surveillance from the A-Plus Sunoco showed two
individuals robbing the store on the date in question. The taller of the two
suspects was wearing a black ski mask, a green coat with a patch on the right
arm and blue jeans. He was carrying a blue tote bag with a white design on it,
The shorter suspect was wearing a Halloween mask, black gloves and blue
14
jeans. The court, as factfinder, had no doubt after reviewing the video
surveillance as well as the still photographs from both the A-Plus and
Citizens and Northern Bank videos that underneath the black ski mask was
another facial covering, and not flesh. The color was whitish gray and not
flesh colored.
Found in Mr. Moore's vehicle a few days later was, among other
things, the green jacket. There is no doubt in the court's opinion that the
jacket was the same jacket used in the A-Plus robbery. It was the same color
and it had markings on it that were identical. A blue tote bag was also found
in the back of Mr. Moore's car. The court had no doubt in finding that this
item also was identical to that used in the A-Plus robbery. It was of the same
color, had the same shape and had the same markings on it.
Of significance was the black ski mask found in the back of Mr.
Moore's car. It too was identical to the ski mask that was used in the A-Plus
robbery. Indeed, the eyeholes that were cut out were different sizes. This was
verified on the videotape, the still photos and in viewing the black ski mask
itself.
At the time Mr. Moore was stopped, [Appellant] was seen on the
opposite side of the roadway walking in an easterly direction. Yet when he
was apprehended shortly thereafter, he was walking in a westerly direction.
He had an opportunity and the court could infer that he walked past or near
where the other incriminating items were located.
The one mask that was found was identical to the mask that was used
in the A-Plus robbery. In comparing the still frames as well as the video,
there were many similar characteristics such as the nose and the "half circle"
on the profile.
The second mask that was found had red "fiber hair." A red fiber was
also found on the black ski mask which was wom by the taller suspect during
the A-Plus robbery. The inference is that the black ski mask was placed over
the second Halloween mask with the red fiber. The evidence was clear that
the fibers were visually, microscopically and chemically consistent. It is
clearly a reasonable inference based upon all of the circumstantial evidence
that the taller suspect wore the white grayish mask with the red hair under the
black ski mask.
As well, there was determinative DNA evidence. On the white
Halloween mask with the reddish hair, [Appellant]'s DNA profile was a
major contributor and the chances of the profile not being his were extremely
small.
While [Appellant] argued that his DNA could have gotten on the
mask from wearing it on the morning of the intended bank robbery, such does
not make sense. In [Appellant]'s conversation with his mother that was
recorded at the prison he stated he was "planning to wear it." If [Appellant]
had not worn it but as he stated was planning on wearing it, it is reasonable to
15
infer that his DNA found its way on the mask because he had worn it
previously.
[Appellant] also made another admission that the court found
particularly relevant. During the conversation with this mother while he was
in prison, she confronted him about the mask and the fact that law
enforcement was contending that it was the same mask. In what was an
apparent slip-up, the [Appellant] stated ''it ain't mine. The mask I had for
that, for the other .... " He said further that "the bank situation don't got
nothing to do with that situation."
Although the court had a difficult time following some of the
telephone evidence, it was fairly clear that during the timeframe of both
incidents, Mr. Moore and Mr. Hall had telephone conversations with each
other.
With respect to [Appellant J's height, there was an abundance of
evidence that he was in the height range as estimated by the victim. There
was no doubt in the court's mind that the individual on the surveillance tape
and in the still photos was of a similar height to [Appellant].
In considering all of this evidence, the court has no hesitation in
concluding that it was sufficient to conclude beyond a reasonable doubt that
[Appellant] was the perpetrator of the crimes to which he was found guilty.
T.C.0., 1/28/15, at 2-12.
Appellant's final claim is that the verdict was against the weight of the
evidence as there was no competent evidence to establish that he committed the robbery to
the extent that it shack's one's sense of justice. In his post sentence motion, Appellant
contended that the verdict was against the weight of the evidence because: the store clerk
believed the Sunoco was robbed by two "white guys;" the store cle.rk said the robbers were
between 5'8" and 6' mid Appellant is 6'4''; the black ski mask worn by the robber was not
tested for DNA evidence; the video of the robbery does not reveal any features of the taller
robber; the Halloween mask cannot be clearly seen on the video todetermine that it was worn·
under the black ski mask; and the DNA evidence on the Halloween mask was a mixture.
A weight of an evidence claim enables a judge to reverse a verdict only when
16
it is so contrary to the evidence as to shock one's sense of justice and the reward of a new
trial is imperative so that right may be given another opportunity to prevail. Commonwealth
v. Sanchez, 614 Pa. 1, 36 A.3d 24, 39 (201 l)(citing Commonwealth v. Blakeney, 596 Pa. 510,
946 A.2d 645, 652-53 (Pa. 2008)). "The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part or none of the evidence and to determine the credibility
of the witnesses." Commonwealth v. Small, 559 Pa. 423, 435, 741 A.2d 666, 672-73 (1999),
cert. denied, 531 U.S. 829, 121 S. Ct. 80 (2000); see also Tejada, 107 A.3d at 795-96 (citing
Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012)).
The verdict did not shock the court's conscience. As the court noted when it
denied Appellant's post sentence motion:
Ms. Frey's belief that she was robbed by two white guys was
speculative at best by her own admission. The height of the assailants as
described by her was close to that of [Appellant) with respect to the taller
one. The fact that the black mask was not tested for DNA is also of no .
moment since the white mask worn under it was tested and it connected
[Appellant] to it. The failure of the video to allegedly not reveal any features
of the taller robber is insignificant. The taller robber wore the black ski mask
and the green jacket and carried the blue tote bag all of which were found in
Mr. Moore's vehicle and all of which were intended to be used apparently
by [Appellant) in the bank robbery. [Appellant's) contention that the
Halloween mask could not be clearly seen on the video is correct.
Circumstantially, however, the court concluded that it was worn under the
black ski mask. Finally, the fact that the DNA evidence on the Halloween
mask was a mixture misstates the testimony of the DNA expert. [Appellant]
was clearly identified as the major contributor.
T.C.O., 1/28/15, at 13-14.
Furthermore, the police considered and excluded Stephen Moore and Davon
Grissom as suspects in the Sunoco robbery, because neither of them matched the build and
height of the taller robber on the video surveillance. Phillip Hall was the shorter robber. His
17
DNA was inside the flesh-colored Halloween mask worn by the shorter robber and his height
and build were consistent with the images of the shorter robber on the video surveillance
tape. Stephen Moore, who was around 5'9" and 230 pounds, was neither tall enough nor thin
enough to be the taller robber. N.T., 10/22/2014, at 5. Although Davon Grissom's DNA also
was detected on one of the Halloween masks, he was not tal1 enough to be the taller robber.
Id. at 5-6. Grissom also could not have been the shorter robber, because at one point the
. .
shorter robber reached out his arm and one could see the white of his skin; Grissom is a dark
skinned black male. Id. at 6. Therefore, while the clerk estimated that the taller robber was 6'
and Appellant is 6'4", the court had no difficulty in concluding that he was the taller robber.
This conclusion did not shock the court's conscience because: Appellant was tall and thin
like the taller robber depicted on the video surveillance; his DNA was the major contributor
to the DNA in the white or gray Halloween mask; the white or gray Halloween mask had red
synthetic hair; a red fiber was found inside the black ski mask that was visually,
microscopically and chemically consistent with the red synthetic hair on the Halloween mask;
he was a friend or acquaintance with Phillip Hall and Stephen Moore; the green coat worn by
the taller robber and the blue bag carried by him in the Sunoco robbery were found in the
gold Chrysler being driven by Stephen Moore on October 13, 2009; Appellant had been seen
near the vehicle and was acting suspicious; Appellant admitted, as part of his conspiracy
conviction, that he conspired with Stephen Moore on October 13, 2009 to rob the Woodlands
Bank; and Stephen Moore was too short and stocky to be the taller robber in the Sunoco
robbery. From this evidence, one can easily conclude that Appellant was the taller robber
who carried the blue bag and wore the green coat and the black ski mask with the white
18
Halloween mask underneath it which showed through the eyeholes during the Sunoco
robbery.
DATE: By The Court,
Marc F. Lovecchio, Judge
cc: District Attorney
vTrisha Hoover, Esquire
Work file
Gary Weber, Esquire (Lycoming Reporter)
Superior Court (original & 1)
19