Com. v. Johnson, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHAQUILLE JOHNSON,
Appellant No. 1747 EDA 2018
Appeal from the Judgment of Sentence May 4, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006004-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 22, 2019
Shaquille Johnson ("Johnson") appeals from the judgment of sentence
entered following his conviction for conspiracy to commit robbery.'
Additionally, counsel for Johnson, Patrick J. Connors, Esquire ("Attorney
Connors"), has filed an Application for Leave to Withdraw as counsel and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant Attorney
Connors's Application for Leave to Withdraw and affirm Johnson's judgment
of sentence.
On July 3, 2017, Johnson accompanied an acquaintance, Stephen Koons
(the "Victim"), to the bank. Johnson observed the Victim withdraw nearly
$750 in cash and place the money in his wallet. Johnson then accompanied
1- See 18 Pa.C.S.A. §§ 903(a), 3701(a)(1)(iv).
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the Victim to his home. At the Victim's home, Johnson asked if it would be
okay to invite another friend, known by the Victim as "D.D.," to the Victim's
house. The Victim had previously met D.D. once or twice. Shortly after D.D.'s
arrival, Johnson and D.D. asked the Victim if he could make change for a
larger bill. As the Victim opened his wallet, D.D. grabbed the cash, while
Johnson shouted to "give him his money." When the Victim attempted to grab
the money back from D.D., Johnson and D.D. shoved the Victim down and ran
out of the front door. The Victim contacted the police immediately thereafter
and identified Johnson and D.D. as his assailants.
On July 7, 2017, Johnson was arrested. A cell phone and $373 in cash
were found on his person. A search of the cell phone revealed that D.D. had
texted Johnson a picture of new sneakers, which he had purchased on the day
of the robbery. While awaiting trial in prison, Johnson made a call to his family
and said, "[t]his is a beautiful case because [the Victim] has medical problems.
He's schizo [sic] and paranoia [sic]...."
A jury convicted Johnson of conspiracy to commit robbery on March 20,
2018. The trial court sentenced Johnson, on May 4, 2018, to 24 to 60 months
in prison, with credit for time served, to be followed by 5 years of probation.
Thereafter, Johnson filed a timely Notice of Appeal and a court -ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Attorney Connors subsequently filed, in this Court, an Application for Leave to
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Withdraw from representation and a brief pursuant to Anders. Johnson did
not file a pro se brief, nor did he retain alternate counsel for this appeal.
In the Anders Brief, Attorney Connors presents the following issue for
our review: "Whether the evidence was insufficient to sustain the conviction
for [c]onspiracy to commit [r]obbery[,] where the Commonwealth failed to
prove beyond a reasonable doubt that [] Johnson entered into any kind of
agreement with anyone to commit a crime or shared any kind of criminal
intent with anyone?" Anders Brief at 2.
We may not address the merits of the issue raised in the Anders Brief
without first addressing Attorney Connors's Application for Leave to Withdraw.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007).
Prior to withdrawing as counsel on a direct appeal, counsel must
file a brief that meets the requirements established by our
Supreme Court in Santiago. Prior to withdrawing as counsel on
a direct appeal under Anders, counsel must file a brief that meets
the requirements established by our Supreme Court in Santiago.
The brief must[]
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is frivolous;
and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
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Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to [her] client. Attending the brief must be a
letter that advises the client of his right to[] "(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
the Anders brief." Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d
40 (2007).
Commonwealth v. Oreliana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied the technical requirements of Anders
and Santiago, this Court must then "conduct a simple review of the record to
ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated." Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
Our review of Attorney Connors's Application for Leave to Withdraw,
supporting documentation, and Anders Brief reveals that he has complied
with all of the foregoing requirements. Attorney Connors indicated that he
reviewed the record, including relevant testimony, and determined that the
appeal was frivolous. See Anders Brief at 8. The record further reflects that
Attorney Connors furnished a copy of the Anders Brief to Johnson; advised
Johnson of his right to retain new counsel, proceed pro se, or raise any
additional points that he deems worthy of the Court's attention; and attached
a copy of the letter sent to Johnson to the Anders Application for Leave to
Withdraw, as required by Commonwealth v. Millisock, 873 A.2d 748, 751
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(Pa. Super. 2005). 2 As Attorney Connors has complied with all of the
requirements set forth above, we now address the sole issue that, according
to Attorney Connors, arguably supports Johnson's appeal.
On appeal, Johnson avers that the evidence presented by the
Commonwealth was insufficient to sustain his conviction of criminal conspiracy
to commit robbery. See Anders Brief at 7-8. Specifically, Johnson claims
that, because the Victim testified at trial that he suffers from mental health
issues with occasional hallucinations, the evidence "was so weak and
inconclusive that the conviction should be overturned."3 Id. at 8.
Additionally, Johnson emphasizes testimony that instead of telling the Victim
to give D.D. his money, Johnson had actually told D.D. to "give [the Victim]
his money." Id. (emphasis added).
2 While the Supreme Court in Santiago set forth the above -mentioned
requirements for an Anders brief, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.
3 To the extent that Johnson challenges the Victim's credibility, such an
argument challenges the weight of the evidence, rather than its sufficiency.
See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007)
(stating that where an appellant "essentially argues that the trial court erred
in crediting the victim's ... version of events[,] ... such arguments go to the
weight, not sufficiency, of the evidence." We note that Johnson waived this
claim by failing to preserve it in his Concise Statement. We further note that,
even if the claim were not waived, "the determination of the credibility of a
witness is within the exclusive province of the jury." Commonwealth v.
Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017). "[I]t is well settled that [this]
Court cannot substitute its judgment for that of the trier of fact."
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009).
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Our standard when reviewing the sufficiency of the evidence
is whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
[] verdict -winner, are sufficient to establish all elements of the
offense beyond a reasonable doubt. We may not weigh the
evidence or substitute our judgment for that of the factfinder.
Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact -finder is free to resolve any
doubts regarding a defendant's guilt unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(quotation marks and citations omitted).
The Crimes Code defines criminal conspiracy and robbery as follows:
§ 903. Criminal conspiracy
(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.
18 Pa.C.S.A. § 903(a).
§ 3701. Robbery
(a) Offense defined. --
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
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(iv) inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of
immediate bodily injury....
18 Pa.C.S.A. § 3701(a)(1)(iv).
Proof of an explicit, formal agreement to conspire to commit a crime is
seldom available and unnecessary to sustain a conviction of criminal
conspiracy. See Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa.
2004) (stating that direct evidence of a conspiratorial agreement is rare and
that such an agreement may be proven through circumstantial evidence); see
also Commonwealth v. Yong, 120 A.3d 299, 312 (Pa. Super. 2015)
(stating that "where the conduct of the parties indicates that they were acting
in concert with a corrupt purpose, the existence of a criminal conspiracy may
be properly inferred.").
The evidence, both circumstantial and direct, viewed in the light most
favorable to the Commonwealth as verdict winner, provides ample support for
Johnson's conviction. As cogently explained by the trial court,
[Johnson's] argument lacks merit[,] as the evidence unequivocally
demonstrated that [Johnson], who knew [that] the [V]ictim had
withdrawn money from the bank that day, invited [D.D.] over to
the [V]ictim's house, and asked the [Victim] to make change for
a larger bill, knowing [that] the [Victim] would pull the money out
of his pockets. When [the Victim] went to make the change,
[Johnson] started yelling to give him money while [D.D.] snatched
the cash out of the [V]ictim's hand. The [V]ictim testified that
both [D.D.] and [Johnson] pushed him backwards into the kitchen
door, which was the only thing that stopped him from completely
falling to the ground. [Johnson's] phone conversation clearly
shows that [Johnson] selected the [V]ictim on purpose, knowing
[that Johnson] could pr[e]y upon the fact that the [V]ictim was
suffering from mental illness and was a trusting friend. [Johnson]
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even states that it is a "beautiful case" because he believes
nobody will believe the [V]ictim. Unfortunately for [Johnson], the
jury weighed the evidence, the demeanor of the witnesses, and
found the [V]ictim's testimony to be credible.
Trial Court Opinion, 11/26/18, at 8-9.
The record supports the trial court's findings, and the jury reasonably
inferred, from the evidence of record, that Johnson and D.D. orchestrated the
robbery and acted in concert to steal property from the Victim through the
use, or threat, of physical injury. See 18 Pa.C.S.A. §§ 903(a), 3701(1)(iv).
Based upon the foregoing, we agree with the sound reasoning of the
trial court that there was sufficient evidence to support Johnson's conviction.
Application for Leave to Withdraw granted. Judgment of sentence
affirmed.
Judgment Entered.
Jseph D. Seletyn,
Prothonotary
Date: 7/22/19
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