Com. v. Miller, T.

J-S74021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TIMOTHY MILLER
Appellant No. 870 EDA 2017
Appeal from the Judgment of Sentence Entered March 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009273-2012
BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019
Appellant Timothy Miller appeals from the March 18, 2015 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County (“trial
court”), following his jury convictions for three counts of robbery, one count
of conspiracy, and one count of aggravated assault.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. Following
an armed robbery of three women in a hair salon, Appellant was arrested, and
charged with, inter alia, the foregoing crimes. Summarizing the trial
testimony, the trial court found:
Ms. Naadirah Fate, testified that on the afternoon of May 18,
2012, she was working at the Zoo Hair Salon located at 60 th and
Spruce in the City and County of Philadelphia, when a woman
robbed her and two other occupants at gun point. Prior to the
robbery, at approximately 2:45 p.m., Ms. Fate was alone in the
shop with [Appellant], who was cleaning at the time. [Ms. Fate
was on the phone with a car salesman whom she told her about
____________________________________________
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), and 2702(a), respectively.
J-S74021-18
the $2000.00 she had to purchase a car. Appellant was close to
Ms. Fate in the same section of the salon.] After [Ms. Fate got]
off the phone with the car salesman, [Appellant] indicated to her
that he knew someone who sold cars and left the shop. Shortly
thereafter, three people, her cousin Malisha, her client Robin and
Robin’s five year old son, entered the shop. Shortly thereafter, a
woman (later identified as Ms. Javonna Johnson) dressed in a
“hoodie” and “big baggie pants” entered the salon demanding to
speak to the owner. Ms. Fate called the current owner on her own
cell phone and let Ms. Johnson talk to her.
At some point, Ms. Johnson pulled a gun from her hoodie
and ordered everybody to slide their pocket books to the left, as
well as their phones. Ms. Fate testified that Malisha complied,
surrendering a denim purse. When Ms. Fate was unable to
surrender a pocketbook, because she had just sold it to raise the
money to purchase a car, Ms. Johnson cocked the gun, pointed it
at her leg, and demanded: “Where’s the money?” In her
statement to Philadelphia Police Detective Campbell, she stated
that Ms. Johnson finished her conversation with the owner; “Then
she threw me back my phone, said “I heard you trying to buy a
car today, where’s the money at?” Ms. Johnson then pulled the
trigger. Fortunately, the gun misfired. A struggle ensued, during
which Ms. Johnson took the $2000.00 car money from Ms. Fate,
which she had previously hidden in her pants.
Ms. Fate testified that as Ms. Johnson was struggling to get
her money, [Appellant] opened the front door saying to Ms.
Johnson: “Let’s go.” She then gathered everything up, including
Malisha’s pocketbook, Ms. Fate’s money and the three women’s
cell phones, and fled.
Ms. Fate followed Ms. Johnson out of the shop and pursued
her on foot. When they entered a nearby alleyway, [Appellant]
pushed her to the ground, impeding her pursuit. She was then
picked up by Malisha and continued the pursuit in her car. They
followed Ms. Johnson to 5911 Irving Street, where she saw both
[Appellant] and Ms. Johnson enter the house. She also testified
that when the police arrived, she pointed out the house to them
and when one of the officers knocked on the front door of the
house, [Appellant] opened it.
Philadelphia Police Officer Damian Wyche testified that at
approximately 2:30 p.m. on May 18, 2012, he was on routine
patrol with his partner, Officer Clara Martinez, when they received
a radio call for robbery in progress, a person with a gun. They
were the first officers on the scene and were led to 5911 Irving
Street by Ms. Fate, which Officer Wyche described as a corner
property with an alley running behind it. Once there, he went to
the back of the premises and his partner remained in the front.
He saw [Appellant] and Ms. Johnson come into the backyard
holding various objects in their hands, one of which he believed to
be a gun. When he called out to them: “Let me see your hands,”
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J-S74021-18
they threw objects into the next yard and retreated back into the
house.
He testified that these objects were eventually recovered by
Officer Ronald Green, who testified that, at Officer Wyche’s
direction, he recovered a black iPhone, a black iPod, and [] a
Smith and Wesson Desert Eagle loaded with 12 rounds and one
chambered. Ms. Fate identified the gun as the one used in the
robbery.
Officer Clara Martinez testified that as she and her partner,
Officer Damian Wyche, arrived at the hair salon, Ms. Fate told
them that she had been robbed and led them 5911 Irving Street,
where they both got out of their patrol car. She stayed in front
as Officer Wyche went around the rear of the property. As she
knocked on the front door, she could hear a lot of commotion from
inside the house. When [Appellant], whom she described as
sweating profusely, open [the door], he told her: “There’s no one
else here.” Not believing him, she handcuffed him before
entering. Once inside, Ms. Johnson was discovered in the
basement.
Trial Court Opinion, 11/30/17, at 4-7 (record citations, footnotes and some
quotation marks omitted). The jury found Appellant guilty of conspiracy, three
counts of robbery and aggravated assault. On March 18, 2015, the trial court
sentenced Appellant to a concurrent term of five to ten years’ imprisonment
for the robbery convictions. With respect to conspiracy and aggravated
assault, the trial court sentenced Appellant to two and one-half to five years’
imprisonment for each conviction, to run consecutively with his robbery
sentence. Taken together, the trial court sentenced Appellant to ten to twenty
years in prison.
On March 24, 2015, Appellant filed post-sentence motions, which were
deemed denied by operation of law under Pa.R.Crim.P. 720(B)(3) on July 23,
2015. Appellant did not file a direct appeal.
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J-S74021-18
On January 22, 2016, Appellant pro se filed a petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, seeking the nunc
pro tunc reinstatement of his direct appeal rights. On February 10, 2017, with
the Commonwealth’s concurrence, the PCRA court granted Appellant the
requested relief, reinstating his direct appeal rights. Appellant timely
appealed to this Court. Appellant and the trial court complied with Pa.R.A.P.
1925.
On appeal, Appellant raises a single issue for our review: “Was there
insufficient evidence to convict Appellant Timothy Miller convictions of
aggravated assault, conspiracy, and three counts of robbery?”2 Appellant’s
Brief at 3 (unnecessary capitalizations omitted) (sic).
____________________________________________
2 As the Commonwealth points out, and we agree, Appellant has abandoned
his sufficiency of evidence claim with respect to his convictions for robbery
and aggravated assault because he failed to include it in the argument section
of his brief, much less develop it in any coherent fashion. As a result, we
cannot meaningfully review it. See Pa.R.A.P. 2119(a) (stating that the
argument section of the parties’ briefs “shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctly displayed—the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent.”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009),
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”) (citation
omitted), cert. denied, 562 U.S. 906 (2010); see also Commonwealth v.
Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006) (deeming appellant’s
claims waived under Pa.R.A.P. 2119(a) because he did not develop meaningful
argument with specific references to relevant case law and to the record to
support his claims); Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.
Super. 2005) (recognizing that failure to provide “such discussion and citation
of authorities as are deemed pertinent” may result in waiver);
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J-S74021-18
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’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 fact may be
drawn from the combined circumstances. The 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.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
The Crimes Code defines conspiracy 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
____________________________________________
Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004) (declining
to review appellant’s claim where there was limited explanation and
development of the argument). Even if his sufficiency claim is not abandoned,
he still is not entitled to relief based on the reasons outlined in the trial court’s
November 30, 2017 opinion. See Trial Court Opinion, 11/30/17, at 13-15.
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J-S74021-18
(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.
(b) Scope of conspiratorial relationship.--If a person guilty of
conspiracy, as defined by subsection (a) of this section, knows
that a person with whom he conspires to commit a crime has
conspired with another person or persons to commit the same
crime, he is guilty of conspiring with such other person or persons,
to commit such crime whether or not he knows their identity.
(c) Conspiracy with multiple criminal objectives.--If a
person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are the object
of the same agreement or continuous conspiratorial relationship.
....
(e) Overt act.--No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S.A. 903(a), (b), (c) and (e).
After careful review of the record and the relevant case law, we conclude
that the trial court accurately and thoroughly addressed the merits of
Appellant’s sufficiency claim relating to his conviction for conspiracy. See Trial
Court Opinion, 11/30/17, at 9-13. Accordingly, we affirm Appellant’s
judgment of sentence. We further direct that a copy of the trial court’s
November 30, 2017 opinion be attached to any future filings in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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0054_Opinion
Circulated 01/31/2019FILED
10:47 AM
NOV 3 0 2017
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Records
Appeals/Post Trial
COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA
870 EDA 2017
V.
CP-51-CR-0009273-2012
TIMOTHY MILLER
-
CP-51-CR-0009273-2012 Comm. v. Miller. Tomolhy
Opinion
OPINION
111111111 1111111111111 Ill
8037226831
STATEMENT OF THE CASE
Defendant is appealing his conviction on the charges of Robbery, Aggravated
Assault and Conspiracy arising out of his participation in the gun point robbery of three
women in a hair salon. Defendant is now seeking relief on the grounds that his
convictions are against .both the weight and sufficiency of the evidence. Defendant
further complains that the Court abused its discretion in imposing sentence. Defendant's
complaints are without merit.
PROCEDURAL HISTORY
On November 14, 2011, Defendant was arrested and charged with numerous
offenses, including inter alia; 1) Three counts of Robbery - Threatens Serious Bodily
Injury pursuant to 18 Pa.C.S.A. §370l(a)(l)(ii); 2) One count of Criminal Conspiracy to
Commit Robbery pursuant to 18 Pa.C.S.A. 903(C); 3) One count of Aggravated Assault
pursuant to 18 Pa.C.S.A. §2702(a); 4) One count of Possession of Firearm by a Person
Prohibited pursuant to 18 Pa.C.S.A. §6105(a)(l) and 5) One count of Carrying Firearms·
on Public Streets or Public Property in Philadelphia pursuant to 18 Pa.C.S.A. §6108.
On October 23, 2014, at the close of the Commonwealth's case in chief, the Court
granted Defendant's motion for acquittal on the charge of Carrying a Firearm on the
Streets of Philadelphia. On October 23, 2014, at the conclusion of his jury trial,
Defendant was found guilty on all three counts of Robbery, one count of Conspiracy and
one count of Aggravated Assault. Subsequent to the jury's verdict, the Court found
Defendant not guilty on the charge of Possession of a Firearm by a Person Prohibited.
On March 18, Defendant was sentenced on each robbery charge to concurrent periods of
confinement in a state correctional facility of 5 to 16 years. On the remaining charges of
conspiracy and aggravated assault, Defendant was sentenced to two consecutive periods
of confinement of 2Y2 to 5 years each, to run consecutively to his sentences on the
robbery charges, for an aggregate sentence of 10 to 20 years of confinement.
On March 24, 2015, Defendant filed a post sentence motion seeking a new trial on
the grounds that the verdicts were against the weight of the evidence or, in the alternative,
a reconsideration of his sentence. On July 23, 2015, Defendant's motion was dismissed
by operation of law. Defendant did not pursue his right to file a direct appeal.
On January 22, 2016, Defendant timely filed his prose PCRA petition pursuant to
42 Pa.C.S.A. §9541, et. Seq., seeking reinstatement of his appellate rights. On May 16,
2016, Thomas F. Burke, Esq., was appointed as counsel to represent Defendant for the
purposes of his PCRA petition. On November 4, 20 I 6, on pro se motion of Defendant,
Mr. Burke, was relieved of representation and on November 10, 2016, Richard Jan Blok,
2
Esq., was appointed as PCRA counsel. On December 12, 2016, Defendant filed a
counseled amended PCRA petition. On February 10, 2017, the Court reinstated
Defendant's appellate rights by agreement of the Commonwealth.
On March 3, 20 I 7, Defendant timely filed the instant appeal to the Superior Court
of Pennsylvania. On March 13, 2017, this Court filed and served on Defendant an Order
pursuant to Rule l 925(b) of the Pennsylvania Rules of Appellate Procedure, directing
Defendant to file and serve a Statement of Errors Complained of on Appeal, within 21
days of the Court's Order. On April 3, 2017, Defendant timely filed his "Matters
Complained of on Appeal. On May 22, 2017 the Superior Court granted Mr. Blok's
petition to withdraw as PCRA counsel. On July 19, 2017, Douglas Earl, Esq., was
appointed as counsel to represent Defendant for the purposes of this appeal. After being
granted several extensions to file a statement of errors, Mr. Earl timely filed his
"Statement of Matters Complained Of' on November 7, 2017. In his statement of
matters, Defendant raises four issues, namely:
1. "The Verdict was against the weight of the evidence where multiple
irreconcilably inconsistent statements were made by Commonwealth Witnesses.
Appellant Timothy Miller was an employee of the salon. He was merely present
during the incident.
2. There was insufficient evidence to sustain Appellant Timothy Miller convictions
for aggravated assault, conspiracy, and three counts of robbery. Nothing was ever
taken from complainant Robin Cousette. Appellant Timothy Miller at most was
merely present a short period of time during the incident. There was nothing
unusual about seeing Appellant Timothy Miller on camera because he was an
employee of the salon.
3. The trial court abused its discretion when it sentenced Appellant to an aggregate
sentence of IO to 20 years incarceration, which did not follow the dictates of 42
Pa.C.S. § 9721 (b) that requires the court to a least consider the particular
circumstances of the offense and the character of the defendant.
..,
.)
4. The Commonwealth failed to disclose exculpatory material. There was a
videotape played for the jury for a short period of time. The Commonwealth had
in its possession. a video of the entire incident. Had the whole tape been shown to
the jury, it would have shown that Appellant was outside of the salon for hours
and did not just come along when the co-defendant entered the salon committing
robbery. This would have clearly shown that a conspiracy did not exist because
the Appellant was merely present, outside of the establishment where the crime
was committed."
EVIDENCE AT TRIAL
Ms. Naadirah Fate, testified that on the afternoon of May 18, 2012, she was
working at the Zoo Hair Salon located 601h and Spruce in the City and County of
Philadelphia, when a woman robbed her and two other occupants at gun point. (N.T.,
10/21/14 pgs. 25, 30) Prior to the robbery, at approximately 2:45 p.m., Ms. Fate was
alone in the shop with Defendant, who was cleaning at the time. After getting off the
phone with a car salesman, Defendant indicated to her that he knew someone who sold
cars and left the shop. (N.T., 10/21/14 pgs. 25-29, 92) Shortly thereafter, three people,
her cousin Malisha, 1 her client Robin and Robin's five year ·old son, entered the shop.
Shortly thereafter, a woman (later identified as Ms. Jovanna Johnson/) dressed in a
"hoodie" and "big baggie pants" entered the salon demanding to speak to the owner. Ms.
Fate called the current owner on her own cell phone and let Ms. Johnson talk to her.
(N.T., 10/21/14 pgs. 30, 31) (N.T., 10/22/14 pgs. 21)
I Ms. Fate later identified the now deceased Malisha as Malisha Jessie. (N.T., 10/21/14 pgs. 43, 45)
2 For the convenience of the discussion, hereafter the Court will refer to her as "Ms. Johnson."
4
At some point Ms. Johnson pulled a gun from her hoodie and "ordered everybody
to slide their pocket books to the left. .. ," as well as their phones. (N.T., 10/21/14 pg. 30,
31, 3 7) Ms. Fate testified that Malisha complied, surrendering a denim purse. When Ms.
Fate was unable to surrender a pocketbook, because she had just sold it to raise the
money to purchase a car, Ms. Johnson cocked the gun and pointing it at her leg,
demanded: "Where's the money?" In her statement to Philadelphia Police Detective
Campbell, she stated that Ms. Johnson finished her conversation with the owner; "Then
she threw me back my phone, said 'I heard you trying to buy a car today, where's the
money at."' (N.T., 10/21/14 pg. 93) Ms. Johnson then pulled the trigger. Fortunately,
the gun misfired. A struggle ensued, during which Ms. Johnson took the $2,000 car
money from Ms. Fate, which she had previously hidden in her pants. (N .T., 10/21/14
pgs. 32-36, 93)
Ms. Fate testified that as Ms. Johnson was struggling to get her money, Defendant
opened the front door saying to Ms. Johnson; "Let's go." (N.T., I 0/21/14 pgs. 32, 59, 60)
She then gathered everything up, including Malisha's pocketbook, Ms. Fate's money and
the three women's cell phones, and fled. (N.T., 10/21/14 pg. 36, 37, 40, 56)
Ms. Fate followed Ms. Johnson out of the shop and pursued her on foot. When
they entered a nearby alleyway, Defendant pushed her to the ground, impeding her
pursuit. She was then picked up by Malisha and continued the pursuit in her car. They
followed Ms. Johnson to 5911 Irving Street, where she saw both Defendant and Ms.
Johnson enter the house. (N.T., I 0/21/14 pg '. 40, 41, 61, 76) She also testified that when
the police arrived, she pointed out the house to them and when one of the officers
5
knocked on the front door of the house, Defendant opened it. (N.T., 10/21/14 pgs. 41,
42)
Philadelphia Police Officer Damian Wyche, testified that at approximately 2:30
p.m., 011 May 18, 2012, he was on routine patrol with his partner, Officer Clara Martinez,
when they received a radio call "for a robbery in progress, a person with a gun." (N.T.,
10/21 /l 4 pgs. 100-10 I) They were the first officers 011 the scene and were led to 5911
Irving Street by Ms. Fate, which Officer Wyche described as a corner property with an
alley running behind it. Once there, he went to the back of the premises and his partner
remained in the front. (N.T., 10/21/14 pgs. 102, 103, 105, 115) He saw Defendant and
Ms. Johnson come into the backyard holding various objects in their hands, one of which
he believed to be a gun. When he called out to them; "Let me see your hands," they
threw the objects into the next yard and retreated back into the house. (N.T., 10/21/14
pgs. 105-107, 128)
He testified that these objects were eventually recovered by Office Ronald Green,
who testified that, at Officer Wyche's direction, he recovered "a black iPhone, a black
iPod, and I believe a Smith and Wesson Desert Eagle loaded with 12 rounds and one
chambered." (N.T., 10/21/14 pgs. 108, 109, 132) Ms. Fate identified this gun as the one
used in the robbery. (N.T., 10/21/14 pg. 45)
Officer Clara Martinez, testified that as she and her partner, Officer Damian
Wyche arrived at the hair salon, Ms. Fate told them that she had been robbed and led
them to 5911 Irving Street, where they both got out of the patrol car. She stayed in front
as Officer Wyche went around to the rear of the property. As she knocked on the front
door, she could hear a lot of commotion from inside the house. When Defendant, whom
6
she described as sweating profusely, opened it, he told her; "There's no one else here."
Not believing him, she handcuffed him before entering. (N.T., 10/21/14 pgs. 141-144,
148) Once inside, Ms. Johnson was discovered in the basement. (N.T., 10/21/14 pgs.
145, 146)
DISCUSSION OF THE ISSUE RAISED
I. THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE.
In his first Statement of Errors, Defendant complains that the verdict "was against
the weight of the evidence" stating that the verdict was based on "multiple irreconcilably
inconsistent statements." In support, Defendant argues he was an employee of the salon
and was merely present at the time of the robbery. Defendant's complaint is without
merit.
In Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003), our
Supreme Court held that "[t]he 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. An appellate court cannot substitute its judgment for that of the finder of
fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the
evidence as to shock one's sense of justice." In accord; Commonwealth v. Bostick, 958
A.2d 543, 560 (Pa. Super. 2008) (Citations omitted) "Before a trial court may award a
new trial on the ground that the [ verdict is against the weight of the evidence,] it must
appear that the verdict was so contrary to the evidence as to shock one's sense of justice
and make the award of a new trial imp�rative. When the challenge to the weight of the
evidence is predicated on the credibility of trial testimony, our review of the trial court's
7
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." Commonwealth. v. Rossetti, 863 A.2d 1185,
1191 (Pa. Super. 2004) (Citations omitted.) In Commonwealth v. Gibbs, 981 A.2d 274,
281 (Pa. Super. 2009), our Superior Court, citing Commonwealth v. Bostick, 958 A.2d
543, 560 (Pa. Super. 2008), held "the trier 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."
"The mere existence of conflict in the prosecution's evidence is not fatal to its
case because the Commonwealth is not bound by everything its witnesses say and the
jury can believe all, part or none of the testimony." Commonwealth v. Duncan, 473 Pa.
62, 68, 3 73 A.2d I 051, 1053 ( 1977) "[T]he veracity of a particular witness is a question
which must be answered in reliance on the ordinary experiences of life, common
knowledge of the natural tendencies of human nature, and observations of the character
and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity
of jurors to assess, the question of a witness's credibility is reserved exclusively for the
jury." Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted)
"A motion for new trial on the grounds that the verdict is contrary to the weight of
the evidence, concedes that there is sufficient evidence to sustain the verdict. .. A new trial
should not be granted because of a mere conflict in the testimony or because the judge on
the same facts would have arrived at a different conclusion." Commonwealth v. Widmer,
744 A.2d 745, 751-52 (Pa. 2000) (Internal citations omitted) "One of the least assailable
reasons for granting or denying a new trial is the lower court's conviction that the verdict
8
was or was not against the weight of the evidence and that a new trial should be granted
in the interest of justice." Id., at 753
Defendant's failure to identify which conflicting testimony was "so unreliable
and/or contradictory as to make any verdict based thereon pure conjecture," the Court is
left to guess as to which testimony he is referring. After a careful review of the record,
the Court acknowledges that conflicts did indeed exist in the testimony of the various
witnesses, each of whom was subjected to an intensive cross-examination by counsel.
However, there is nothing in the record to suggest that the jury's verdict was based upon
"pure conjecture." The issue regarding the Defendant's employment and his presence
was clearly before the jury. The Court finds that the resolution of these conflicts was
clearly "within the ordinary capacity of jurors to assess" and resolve. Thus, the Court
cannot conclude that the jury's "verdict was so contrary to the evidence as to shock one's
sense of justice," making "the award of a new trial imperative."
11. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT.
In his second statement of errors, Defendant complains that the evidence was
"insufficient to sustain Appellants convictions for aggravated assault, conspiracy, and
three counts of robbery." In support of his complaint, Defendant argues that the
Commonwealth failed to prove that anything was taken from the complainant, Robin
Cousette. He also argues that since Defendant was an employee of the salon, his
presence was merely coincidental and there was nothing unusual about his being captured
on the video. Defendant's complaint is without merit.
9
"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, 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. Fisher, 47 A.3d 155, 157 (Pa. Super. 2012) citing Commonwealth v.
Widmer, 744 A.2d 745, 751-52 (Pa. 2000) In considering such a claim, the Superior
Court "may not weigh evidence, nor substitute the fact-finder's judgment with this
Court's ... The facts and circumstances which have been established by the Commonwealth
are not required to preclude every possibility of innocence ... The Commonwealth may
sustain its burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence." Commonwealth v. Hennigan, 753 A.2d 245,
253 (Pa. Super. 2000) A court may draw inferences from the facts so long as the inferred
facts are more likely than not to flow from the proven facts. Commonwealth v. Wodjak,
466 A.2d 991, 996 (Pa. 1983).
The jury found Defendant guilty on three counts of robbery, one count of
conspiracy to commit robbery and one count of aggravated assault. Since Defendant was
not the principle actor, his convictions on the robbery and aggravated assault charges were
predicated on his participation in the robbery as a co-conspirator.
10
The crime of conspiracy is defined at 18 Pa.C.S.A. 903, which provides in
pertinent part: "(a) 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: (l)
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."
The Pennsylvania Supreme Court in Commonwealth v. Spotz; 552 Pa. 499, 716 A.2d
580,592 (Pa. 1998) held that, in the absence of an express agreement, such an agreement
can be found through the actions of the parties. In reaching this determination, Spot;
held: "Generally, a conspiracy conviction requires proof of ( 1) an intent to commit or aid
in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in
furtherance of the conspiracy. Although the existence of an agreement is an essential
element of conspiracy, it is generally difficult to prove an explicit or formal agreement.
Therefore, such an agreement may be established inferentially by circumstantial
evidence, i.e. the relations, conduct or circumstances of the parties or overt acts on the
part of co-conspirators." Spotz, 716 A.2d at 592. "Conspiracy is established when the
Commonwealth proves the defendant entered into an agreement to commit or aid in the
commission of an unlawful act, there was a shared criminal intent, and an overt act was
taken in furtherance of the conspiracy. The 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
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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."
Commonwealth v. McCoy, 69 A.3d 658, 664-65 (Pa. Super. 2013)
The evidence before the jury was sufficient for them to establish the existence of a
conspiracy between Defendant and Ms. Johnson. Ms. Fate testified that shortly before
the robbery, Defendant overheard her phone conversation with a car salesman and
indicated that he knew someone who sold cars and left the shop. During the robbery,
immediately before pulling the trigger, Ms. Johnson stated, "I heard you trying to buy a
car today, where's the money at." During a brief struggle, in which Ms. Johnson took the
$2,000 car money from Ms. Fate, Defendant stuck his head in the door saying; "Let's
go." She also testified that Defendant pushed her to the ground, impeding her pursuit.
Ultimately, Ms. Fate saw both Defendant and Ms. Johnson, enter the same house.
Her testimony was corroborated by that of Officers Martinez and Wyche. Officer
Martinez testified that Defendant opened the door of the premises. Officer Wyche
testified that, prior to gaining entry to the premises, he observed both Defendant and Ms.
Johnson in close conversation in the backyard before throwing the gun used in the
robbery into the adjacent yard, which Officer Green recovered. There is little doubt that
12
the evidence was sufficient for the jury to have concluded that Defendant and Ms.
Johnson had acted in concert in both planning and committing the robbery.
Robbery as a felony of the first degree, is defined at 18 Pa.C.S.A. 3701 (a)(l )(iii)
which provides in part that "(a)(l) "A person is guilty of robbery if, in the course of
committing a theft, he ... (ii) threatens another with or intentionally puts him in fear of
immediate serious bodily injury." § 3701 provides further at (a)(2) that: "An act shall be
deeded 'in the course of committing a theft' if it occurs in an attempt to commit theft or
in flight after the attempt or commission." Theft is defined at 18 Pa. C.S. §3921 (a) as
"(a) a person is guilty of theft if he unlawfully takes, or exercises unlawful control over,
moveable property of another with the intent to deprive him thereof."
It has long been recognized that "the Commonwealth need not prove a verbal
utterance or threat to sustain a conviction under subsection 370l(a)(l)(ii). It is sufficient
if the evidence demonstrates aggressive actions that threatened the victim's safety. For
the purposes of subsection 370l(a)(l)(ii), the proper focus is on the nature of the threat
posed by an assailant and whether he reasonably placed a victim in fear of "immediate
serious bodily injury. The threat posed by the appearance of a firearm is calculated to
inflict fear of deadly injury, not merely fear of "serious bodily injury. A factfindcr is
entitled to infer that a victim was in mortal fear when a defendant visibly brandished a
firearm." Commonwealth v. Hopkins, 747 A.2d 910, 914-15 (P. Super. 2000) (Internal
citations omitted)
Defendant was found guilty of Aggravated Assault pursuant to 18 Pa.C.S.A. 2702
(a)(l) which provides in part that, (a) "A person is guilty of aggravated assault ifhe: (I)
attempts to cause serious bodily injury to another, or causes such injury intentionally,
13
knowingly or recklessly under circumstances manifesting extreme indifference to the
value of human life." Serious bodily injury is defined at 18 Pa.C.S.A. 2301 as, "Bodily
injury which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss, or impairment of the function of any bodily member or
organ." Criminal Attempt is defined at 18 Pa.C.S.A. 901 as, "A person commits an
attempt when, with intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime." Our Supreme Court held, in
Commonwealth v. Matthew, 589 Pa. 487, 492, 909 A.2d 1254, 1257 (Pa. 2006), "A
person acts intentionally with respect to a material element of an offense when ... it is his
conscious object to engage in conduct of that nature or to cause such a result. As intent is
a subjective frame of mind, it is of necessity difficult of direct proof. The intent to cause
serious bodily injury may be proven by direct or circumstantial evidence." (Citations
omitted)
As noted above, Ms. Fate testified that shortly after Ms. Johnson entered the
salon, she pulled a gun from her hoodie and demanded everyone's pocket books and
phones. Ms. Johnson then cocked the gun and pointing it at Ms. Fate's leg said:
"Where's the money?" Getting no response, she pulled the trigger but, fortunately, the
gun misfired. A struggle then ensued during which Ms. Johnson recovered $2,000 from
Ms. Fate. Ms. Johnson then gathered Malisha's pocketbook, Ms. Fate's money and the
three women's cell phones and fled.
Defendant's complaint that the Commonwealth failed to prove that Robin
Cousette's (Robin) cell phone w_as taken during the robbery, thus negating his conviction
on one of the charges of robbery, is utterly frivolous. Ms. Fate testified that Robin's cell
14
phone was not only taken during the robbery but was among the items eventually
recovered at the time of Defendant's arrest. (N.T., 10/21/14 pgs. 36, 37, 56)
Furthermore, a conviction pursuant to §3 70 l ( a)( 1 )(ii) does not require that the predicate
. .
offense of theft be completed, but only that it was attempted, to sustain a conviction for
robbery. Commonwealth v. Robinson, 936 A.2d 107 (Pa. Super. 2007)
Ms. Fate's testimony that during the course of the robbery, Ms. Johnson
not only pointed the gun at her leg, but pulled the trigger, was sufficient establish that
Ms. Johnson attempted "to cause serious bodily injury to another ... intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference to the
value of human life." On denying Defendant's motion for acquittal on the charge of
aggravated assault, the Court noted for the record she pulled the trigger while the gun was
pointed at Ms. Fate's leg. This clearly amounted to "an attempt to inflict serious bodily
injury in that not only is serious bodily injury a danger of death ... I mean, depending on
how much damage is done to the leg, you can lose the use of the leg, or at least a
protracted use of the leg. Shooting someone in the leg -- even if you don't kneecap them -
- anywhere in the leg is an attempt to inflict serious bodily injury. So that motion is
denied." (N.T., 10/22/14 pg. 44)
It is clear from the record that the Commonwealth met its burden of establishing
each material element of the crimes of robbery and aggravated assault. As discussed
above, the evidence was also sufficient to conclude that Defendant was an active
participant in the robbery and is, therefore, equally liable for Ms. Johnson's conduct in
assaulting Ms. Fate.
15
III. THE ADDISSION OF THE VIDEO EVIDENCE WAS PROPER.
In his fourth Statement of Errors, Defendant baldly and erroneously asserts; "The
Commonwealth failed to disclose exculpatory material." There is no evidence on the
record to suggest that a copy of the video in question was not disclosed or made available
to Defendant prior to trial. In support of this complaint, Defendant argues that had the
"entire tape been shown to the jury," it would have established that Defendant was
merely present at the time of the robbery and not a participant. Defendant's complaint is
without merit, and is deemed waived.
The Pennsylvania Rules of Appellate Procedure (Pa. R. App. P.) specifically
provide at Rule 302(a) that "Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal." The Pennsylvania Superior Court in Commonwealth
v. Charleston, 16 A.3d 505 (Pa. Super. 2011), held that raising an issue for the first time
in a 1925(b) statement does not satisfy the mandate of Rule 302(a). Furthermore, it is
well-settled that "the failure to raise a contemporaneous objection to the evidence at trial
waives that claim on appeal." Commonwealtlt v. Thoeun Tha, 64 A.3d 704, 713
(Pa.Super.2013) "[T]o preserve a claim of error for appellate review, a party must make
a specific objection to the alleged error before the trial court in a timely fashion and at the
appropriate stage of the proceedings; failure to raise such objection results in waiver of
the underlying issue on appeal." Commonwealth v. Akbar, 91 A.Jd 227, 235 (Pa. Super.
2014) (Internal citations omitted)
Although trial counsel objected to the introduction of the video on the grounds
that it had not been properly authenticated, he did not object to its admission based on its
16
length. (N.T., 10/2l/14 pgs. 50, 53) (N.T., 10/22/14 pg. 40) Therefore, Defendant's
objection is deemed waived.
That said, Defendant engaged in a lengthy discussion with the Court regarding the
length of the video itself. Counsel for the Commonwealth stated for the record that the
video recording in her possession was approximately 12 minutes long commencing
approximately 2 minutes before the robbery and that she had shown only that portion
relating directly to the robbery. Additionally, Philadelphia Police Detective Robert
Conway, testified that he was the lead detective investigating the robbery. As part of the
investigation, his "video recovery specialist," Detective Wilson, recovered video of the
area in question. He personally viewed the recovered video, testifying that, it was
standard procedure to "focus on the alleged time of the incident" and that it was normal
to preserve those portions of a recovered video commencing 2 minutes before the
incident. He also stated that if he felt additional footage was needed, he would have
asked for it. (N.T., 10/22/14 pgs. 27-31) It is clear that the video in the
Commonwealth's possession was made available to Defendant and related only to that
period of time relevant to the commission of the robbery.
Regarding trial counsel's objection to the introduction of the video; "When the
evidence in question is a photograph, it may be authenticated by testimony from a person
who has sufficient knowledge that the photograph fairly and accurately reflects what the
proponent is purporting that photograph to reflect." Commonwealth v. Loug/11u111e, 128
A.Jd 806: 814 (Pa. Super. 2015) This logic applies lo videos as well. On viewing the
video, Ms. Fate identified the location being shown as the front of her salon and depicting
Ms. Johnson as both entering and leaving during the course of the robbery. (N.T.,
17
10/21/14 pgs. 57-61) In admitting the video into evidence, the Court found that it had
been properly authenticated by Ms. Fate as to both time and place. (N.T., 10/22/14 pgs.
41, 42)
IV. DEFENDANT'S SENTENCE WAS APPROPRIATE.
In his third Statement of Errors, Defendant essentially complains that the Court
abused its discretion in sentencing him to consecutive terms of confinement amounting to
an aggregated sentence of 10 to 20 years of confinement. Defendant's complaint is
without merit.
It is well established that in reviewing sentencing matters, the decision trial court
is accorded "great weight, as it is in the best position to view the defendant's character,
displays of remorse, defiance or indifference, and the overall effect and nature of the
crime." Commonwealth v. Canfield, 639 A.2d 46, 50 (Pa. Super. 1994) (internal
citation omitted) Further, a sentence imposed by the sentencing judge will not be
disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Galletta,
864 A.2d 532, 34 (Pa. Super. 2004). An abuse of discretion is found where, "by
reference to the record ... the sentencing court ignored or misapplied the law, exercised its
judgement for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision ... an abuse of discretion is not shown merely by an error in
judgment." Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) Such
deference is given to the sentence imposed because "the sentencing court is in the best
position to determine the proper penalty for a particular offense based upon an evaluation
of the individual circumstances before it." Commonwealth v. Walls, 926 A.2d 957, 961
18
(Pa. 2007) citing Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990) (internal
citations omitted).
In imposing sentence, the sentencing code, at 42 Pa.C.S.A. § 9721(b), requires
that the sentence be "consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant." It also requires the Court to state on the record its
reasons for imposing sentence. A sentencing court "need not specifically cite or include
the language of the sentencing code, it must only demonstrate that the court has
considered the factors specified in the code." Commonwealth v. Cappellini, 690 A.2d
1220, 1228 (Pa. Super. 1997) (Internal citations omitted) "Nevertheless, a lengthy
discourse on the trial court's sentencing philosophy is not required. Rather, the record as
a whole must reflect the court's reasons and its meaningful consideration of the facts of
the crime and the character of the offender." Commonwealth v. Malovich, 903 A.2d
124 7, 1253 (Pa.Super.2006) (Internal citations omitted)
Pennsylvania's sentencing guidelines are advisory only. Commonwealth v. Eby,
784 A.2d 204, 206 (Pa. Super. 2001) The only line that a sentence may not cross is the
statutory maximum sentence. Commonwealth v. Yuhasz, 923 A.2d 1111, 1119 (Pa.
2007)
In his complaint, Defendant does not complain that his sentence exceeds the guide
line ranges, tacitly conceding that the sentence imposed on each count was proper. As
discussed below, each of Defendant's sentences fall squarely within the sentencing
guidelines' minimum ranges, and two even within mitigated ranges.
19
Prior to imposing sentence, counsel agreed that on each of the charges for which
he was convicted the offense gravity score (OGS) was 10 and that Defendant's prior
record score (PRS) was 5. It was also agreed that, as to each charge, the guidelines
recommended a minimum sentence of 60 to 72 months,± 12 months incarceration, for a
total possible minimum guideline sentence of 50 to 100 years. Defendant was not
eligible for the Recidivism Rate Reduction Incentive (RRRJ). (N.T., 3/18/15, pg. 6, 9,
1 7, 18)
At the conclusion of his sentencing hearing, the Court sentenced Defendant on
'
each robbery charge to concurrent periods of confinement in a state correctional facility
of 5 to 10 years. On the remaining charges of conspiracy and aggravated assault,
Defendant was sentenced below the guidelines to two consecutive periods of confinement
in a state correctional facility of 21/2 to 5 years each, to run consecutively to his sentences
on the robbery charges, for an aggregate sentence of 10 to 20 years of confinement.
(N.T., 3/18/15, pgs. 40-42)
Prior to imposing sentence the Court reviewed Defendant's PSI, heard argument
of counsel and carefully considered Defendant's testimony, the testimony of his character
witness, as well as the favorable testimonials regarding his character. On imposing
,
sentence, the Court noted for the record:
"With regard to this sentence, when I made my calculation within the
guidelines, in fact, at the bottom end of the guidelines, five to ten years for
these robbery charges is a guideline sentence, and there are three counts of
robbery.
As a general rule, I do not run those counts concurrent with each other, I
run them consecutively, because I don't think you should get a volume
discount when you rob three people instead of one.
20
On top of that, two-and-a-half to five for the aggravated assault because it
is worse when you actually pull the trigger and try to shoot somebody. And it
wasn't you, it was your accomplice, but you're responsible for what she did.
And conspiracy, the law says that's an additional offense. It's worse when
people get together and do things by agreement than doing them on their own
or more spontaneously
When I add that all up, consecutive sentences, the total is 20 to 40 years.
However, I've considered the arguments of counsel, the presentence report. I
recall most of the testimony from trial. While the defendant is, I believe, a
threat to the community, I am not confident that he isn't going to be back. His
likelihood of recidivism is right up near the top. The DA's only asking for ten
to 20 years, and if that's all the DA wants, then I'll go along with that." (N.T.,
3/18/15, pgs. 40,41)
In essence, Defendant is not complaining that his individual sentences do not
exceed the guidelines, which, as noted above they do not, but that the Court erred in
imposing consecutive sentences. "Long standing precedent of this Court recognizes that
42 Pa.C.S.A. §9721, affords the sentencing court's discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same time or to
sentences already imposed." Commonwealth v. Mastromarino, 2 A.Jd 581, 586-5875
(Pa.Super.2010) The Court is of the opinion that Defendant represents an ongoing threat
to society and is a poor candidate for rehabilitation. Furthermore, he has not accepted
responsibility for his participation in the robbery of three women and, in fact, accused the
Commonwealth's witnesses at trial of lying, which the jury found unconvincing. (N.T.,
I 0/22/14, pgs. 75- 78) Although the Court saw no reason not to impose a more severe
sentence, it acquiesced to the recommendation of the Commonwealth. The Court finds
Defendant's sentence to be more than reasonable under the circumstances.
21
CONCLUSION
The Court finds that the jury's verdict was not against either the weight or
sufficiency of the evidence. The Court also finds that Defendant's sentence was
appropriate.
BY THE COURT:
November 30, 2017
J.
22