Com. v. Washington, M.

J-S49025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. WASHINGTON
Appellant No. 2812 EDA 2015
Appeal from the Judgment of Sentence August 20, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002998-2014
BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JULY 22, 2016
Appellant, Michael A. Washington, appeals from the judgment of
sentence entered on August 20, 2015, as made final by the denial of his
post-sentence motion on August 25, 2015. We affirm.
The trial court accurately summarized the factual background of this
case as follows:
At approximately 11:00 [p.m.] on June 19, 2014, Sergeant
Walter Powell of the Downingtown Police Department was
dispatched . . . to a report of an armed robbery. . . . Rochelle
Sweeney [(“Sweeney”)], reported that, while she was inside her
residence with her two minor children, she opened the front door
when someone knocked, expecting it to be her mother at the
door. Sweeney testified that when she opened the door
[Appellant] was pointing a gun at her. [Appellant] forced himself
into her residence. [Appellant] instructed Sweeney to go to the
back door of the residence and to open it, whereupon two [co-
conspirators] entered the residence. Before leaving, [the co-
conspirators] loaded trash bags with baby items and sneakers.
The value of the sneakers alone, without taking into account the
* Former Justice specially assigned to the Superior Court.
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baby items, was approximately $5,000.00. [The co-
conspirators] exited the residence. Before he left, [Appellant]
pointed his gun at Sweeney and her minor children and stated
that if Sweeney called the police he would come back and kill the
children.
Sweeney called the police. Sgt. Powell responded to the
residence and started an investigation with Detective Paul
Trautmann. [On July 16, 2014, the West Chester Police
Department informed the Downingtown Police Department that
an informant stated that Appellant was involved the robbery of
Sweeney.] On July 17, 2014, Det. Trautmann prepared three
separate photo lineups. Sweeney was not informed about any of
the identities of the males in the photos that were presented to
her. Sweeney identified a photo of [Appellant].
Trial Court Opinion, 11/25/15, at 2-4 (internal citations, paragraph numbers,
certain paragraph breaks, and certain honorifics omitted).
The procedural history of this case is as follows. On October 9, 2014,
Appellant was charged via criminal information with 17 offenses including,
inter alia, two counts of robbery,1 two counts of conspiracy to commit
robbery,2 burglary,3 conspiracy to commit burglary,4 making terroristic
threats,5 theft by unlawful taking,6 conspiracy to commit theft by unlawful
1
18 Pa.C.S.A. § 3701(a)(1)(iv).
2
18 Pa.C.S.A. §§ 903, 3701.
3
18 Pa.C.S.A. § 3502(a)(1).
4
18 Pa.C.S.A. §§ 903, 3502.
5
18 Pa.C.S.A. § 2706(a)(1).
6
18 Pa.C.S.A. § 3921(a).
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taking,7 witness intimidation,8 and possession of a firearm by a prohibited
person.9 On June 1, 2015, Appellant filed an omnibus pre-trial motion.
Included within that motion was a request that the Commonwealth reveal
the identity of the informant. On July 2, 2015, the trial court denied
Appellant’s request to compel identification of the informant.
On July 15, 2015, Appellant was convicted of all the above listed
offenses.10 On August 20, 2015, Appellant was sentenced to an aggregate
term of 14 to 28 years’ imprisonment. On August 25, 2015, Appellant filed a
post-sentence motion. The trial court denied the post-sentence motion that
same day. This timely appeal followed.11
Appellant presents three issues for our review:
1. Did the [trial] court err in denying [Appellant’s] motion for
judgment of acquittal?
7
18 Pa.C.S.A. §§ 903, 3921.
8
18 Pa.C.S.A. § 4952(a)(1).
9
18 Pa.C.S.A. § 6105(a)(1).
10
The trial court found Appellant guilty of possession of a firearm by a
prohibited person and a jury found Appellant guilty of the remaining
charges.
11
On September 16, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). Appellant filed his concise statement on September 24,
2015. The trial court issued its Rule 1925(a) opinion on November 25,
2015. Appellant included all issues raised on appeal in his concise
statement.
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2. Did the [trial] court err in denying [Appellant’s] pre-trial request
to have the Commonwealth disclose the identity of [the
informant]?
3. Did the trial court err in denying [Appellant’s] post-[sentence]
motion challenging the weight of the evidence?
Appellant’s Brief at 3.12
In his first issue, Appellant argues that the evidence was insufficient to
convict him of any offense. Specifically, Appellant argues that the
Commonwealth’s entire case rested upon Sweeney’s identification of him as
one of the robbers. He argues that this identification was flawed and,
without this identification, there was insufficient evidence to convict him of
any offense.
“Whether sufficient evidence exists to support the verdict is a question
of law; our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super.
2015), appeal denied, 119 A.3d 351 (Pa. 2015) (citation omitted). In
reviewing a sufficiency of the evidence claim, we must determine “whether
the evidence presented at trial, and all reasonable inferences drawn
therefrom, viewed in a light most favorable to the Commonwealth as the
verdict winner, support the [] verdict beyond a reasonable doubt.”
Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016) (citation
omitted). “The evidence does not need to disprove every possibility of
innocence, and doubts as to guilt, the credibility of witnesses, and the
12
We have re-numbered the issues for ease of disposition.
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weight of the evidence are for the fact-finder to decide.” Commonwealth
v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015) (citation omitted).
Appellant argues that Sweeney’s identification was insufficient to find
him guilty because she met Appellant several weeks prior to the incident in
question yet failed to identify Appellant until she was shown a lineup which
included Appellant’s photograph.13 He argues that in order for Sweeney’s
identification to be reliable, it needed to be made immediately after the
incident in question. This Court has held, however, that eyewitness
identification of a defendant is sufficient to prove a defendant was the
perpetrator of an offense. See Commonwealth v. Kendricks, 30 A.3d
499, 509 (Pa. Super. 2011), appeal denied, 46 A.3d 716 (Pa. 2012).
Appellant’s argument goes to the weight of the evidence, not its sufficiency.
See Commonwealth v. Brewington, 740 A.2d 247, 251 (Pa. Super.
1999), appeal denied, 758 A.2d 660 (Pa. 2000). Accordingly, there was
sufficient evidence to convict Appellant.
In his second issue, Appellant argues that the trial court erred in
denying his request to disclose the informant’s identity. Appellant first
contends that disclosure of the informant’s identity was mandatory under
Brady v. Maryland, 373 U.S. 83 (1963). This argument is without merit
because “[t]he constitutional duty to disclose under Brady encompasses
13
Appellant concedes that his remaining challenges to the sufficiency of the
evidence are in fact challenges to the weight of the evidence. See
Appellant’s Brief at 9-13.
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only exculpatory evidence, it is not a general rule of discovery in criminal
cases.” Commonwealth v. Williams, 86 A.3d 771, 786 (Pa. 2014)
(citation omitted). In this case, the informant’s identity was not
exculpatory. Accordingly, disclosure of the informant’s identity was not
mandatory under Brady.
Alternatively, Appellant argues that the trial court’s failure to compel
the Commonwealth to disclose the informant’s identity violated Pennsylvania
Rule of Criminal Procedure 573(B)(2)(a)(iv). That rule provides that the trial
court may order the disclosure of an informant’s identity if the informant’s
identity is (1) material to the preparation of the defense; (2) is reasonable;
and (3) is in the interest of justice. See Pa.R.Crim.P. 573(B)(2)(a)(iv).
“Our standard of review of claims that a trial court erred in its disposition of
a request for disclosure of an informant’s identity is confined to abuse of
discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa.
Super. 2013) (citation omitted).
In this case, Appellant failed to prove that the informant’s identity was
material to the preparation of his defense. Appellant argues that it was
material because Sweeney only identified Appellant as a perpetrator of the
offense as a result of rumors circulating in the community. See Appellant’s
Brief at 18. Appellant, however, did not need the informant’s identity in
order to be able to cross-examine Sweeney about rumors concerning the
identity of the three men who invaded her home and robbed her and her
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children. Appellant could have cross-examined Sweeney, who testified at
trial, as to any rumors she heard, including the source of those rumors. The
informant’s identity was immaterial to this line of questioning. Accordingly,
we ascertain no abuse of discretion on the part of the trial court in denying
Appellant’s motion to compel disclosure of the informant’s identity.
Finally, Appellant argues that the verdict was against the weight of the
evidence. A challenge to the weight of the evidence must first be raised at
the trial level “(1) orally, on the record, at any time before sentencing; (2)
by written motion at any time before sentencing; or (3) in a post-sentence
motion.” In re J.B., 106 A.3d 76, 97 (Pa. 2014) (citation omitted).
Appellant failed to raise his weight of the evidence claim prior to filing his
concise statement. He failed to raise a challenge to the weight of the
evidence, via either written or oral motion, prior to sentencing. See
generally N.T., 8/20/15.14 Furthermore, he failed to raise a weight of the
evidence claim in his post-sentence motion. See generally Post-Sentence
Motion, 8/25/15 (raising only claims related to the disclosure of the
informant’s identity, the sufficiency of the evidence, and the discretionary
aspects of sentencing). Accordingly, Appellant has waived his weight of the
evidence claim.
Judgment of sentence affirmed.
14
Appellant did not have the notes of testimony transcribed for the
conclusion of trial, i.e., after the jury returned its verdict. See N.T.,
7/15/15, at 393. As such, Appellant has waived any claim that he preserved
the issue at that time. See Pa.R.A.P. 1911(d); see also Pa.R.A.P. 2117(c).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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