Com. v. Hall, B.

J-A13037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BYRON HALL
Appellant No. 1628 WDA 2013
Appeal from the Judgment of Sentence February 19, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006612-2012
BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 10, 2015
Byron Hall appeals the judgment of sentence imposed February 19,
2013, in the Allegheny County Court of Common Pleas. Hall was sentenced
to an aggregate term of seven to 14 years’ imprisonment following his non-
jury convictions of attempted murder, aggravated assault (two counts),
recklessly endangering another person (three counts), and criminal
conspiracy,1 for his involvement in an April 2012 shooting. On appeal, Hall
challenges the sufficiency of the evidence supporting all of his convictions,
and the weight of the evidence supporting his convictions of attempted
murder and criminal conspiracy. For the reasons set forth below, we affirm.
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1
18 Pa.C.S. §§ 901, 2702(a)(1), 2705, and 903, respectively.
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The facts underlying Hall’s arrest and conviction are as follows. At
approximately 1:00 p.m., on April 14, 2012, William Bosley pulled his car
into the carport of the Carnegie Towers apartments, in Carnegie Borough,
Allegheny County. Bosley’s cousin, Tyler Dorsey, was asleep in the backseat
with a two-month old baby. A second vehicle was parked in the carport so
that Bosley could not proceed through. After a few minutes, co-defendant
James Edmonds got out of the driver’s side of the first vehicle and Hall
emerged from the passenger’s side. At the same time, a third co-
conspirator, Rasheed Watson, came out of the lobby of the apartment
building.
In surveillance video from the scene,2 Watson can be seen greeting
Edmonds as they pass each other behind Edmonds’ car. Hall, meanwhile,
proceeded to the driver’s side of Bosley’s car, and appeared to say
something to the occupants. Bosley’s car began to slowly reverse, and Hall
moved his hand to the door handle, as if to prevent the victims from leaving.
At the same time, Watson pulled out a gun and began shooting at Bosley’s
car. When he did so, Hall appeared to calmly back away and rejoin
Edmonds near the apartment entrance. Bosley frantically drove the car in
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2
The entire incident was captured on the apartment complex’s surveillance
videotape. The day after the shooting, Allegheny Police Detective Michael
Feeney copied the relevant portion of the video onto a USB thumb drive,
which was later admitted into evidence at Hall’s trial. See N.T. 11/19-
20/2012, at 30-33. The trial court, sitting as fact finder, reviewed the
surveillance video during the course of the trial.
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reverse away from the scene. Watson then quickly fled on foot past the
apartment lobby entrance as Hall and Edmonds entered the building
together. A short time later, the police arrived, and arrested Hall and
Edmonds when they emerged from the Carnegie Towers building. Both were
identified on the surveillance videotape, and Watson was later apprehended.
All three occupants of Bosley’s vehicle suffered gunshot wounds.
Hall and Edmonds were tried together.3 On November 20, 2012, the
trial court, sitting without a jury, returned a verdict of guilty on all charges
for both co-defendants.4 Hall filed a timely motion to reconsider his
conviction of attempted homicide, which the trial court denied on November
30, 2012. He was sentenced, on February 19, 2013, to an aggregate term
of seven to 14 years’ imprisonment.5 Hall filed a timely post sentence
motion, and, upon leave of court, a supplemental post sentence motion. By
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3
Watson entered a negotiated guilty plea to charges of attempted murder,
aggravated assault, REAP and conspiracy. See Commonwealth’s Brief at 2
n.6.
4
Edmonds’ direct appeal is pending before this Court at Docket No. 1747
WDA 2013.
5
Specifically, the trial court imposed a sentence of seven to 14 years for the
count of attempted murder, a concurrent sentence of three to six years for
each count of aggravated assault, and no further penalty for the remaining
charges.
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order dated October 4, 2013, the trial court denied both motions, and this
timely appeal followed.6
In his first four issues, Hall challenges the sufficiency of the evidence
to support his convictions of conspiracy, attempted murder, aggravated
assault and REAP.
In reviewing the sufficiency of the evidence, we consider
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 [fact
finder’s] beyond a reasonable doubt. Commonwealth v.
Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013).
Whether sufficient evidence exists to support the verdict is a
question of law; thus, our standard of review is de novo and our
scope of review is plenary. Id. at 151.
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,
135 S. Ct. 1400 (U.S. 2015).
We begin with Hall’s conviction of criminal conspiracy. To sustain a
conviction for criminal conspiracy, the Commonwealth must prove:
1) the defendant entered into an agreement with another to
commit or aid in the commission of a crime; 2) he shared the
criminal intent with that other person; and 3) an overt act was
committed in furtherance of the conspiracy. Commonwealth v.
Devine, 26 A.3d 1139, 1147 (Pa.Super.2011). “This overt act
need not be committed by the defendant; it need only be
committed by a co-conspirator.” Commonwealth v. Murphy,
795 A.2d 1025, 1038 (Pa.Super.2002) (citation omitted).
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6
On October 28, 2013, the trial court ordered Hall to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After being granted an extension of time until the notes of testimony were
transcribed, Hall filed a concise statement on June 27, 2014.
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Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012), aff'd, 105
A.3d 1194 (Pa. 2014). See 18 Pa.C.S. § 903. The Commonwealth need not
establish a formal or explicit agreement between the defendant and his co-
conspirators, rather it is well-settled that:
[A] conspiracy may be inferred where it is demonstrated that the
relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a
criminal confederation. The conduct of the parties and the
circumstances surrounding their conduct may create a web of
evidence linking the accused to the alleged conspiracy beyond a
reasonable doubt. Even if the conspirator did not act as a
principal in committing the underlying crime, he is still criminally
liable for the actions of his co-conspirators in furtherance of the
conspiracy.
Id. (citation omitted).
Here, Hall contends there was no evidence demonstrating he agreed
with Watson and Edmonds to shoot the victims, or that he was even aware
Watson intended to commit a crime. Hall asserts “[t]he only evidence
established at trial was that Edmonds and [he] arrived together that day,
that Edmonds greeted the shooter, and that [Hall] moved towards the car
and put his hand on a door.” Hall’s Brief at 2. Further, he emphasizes that
when he approached the victim’s car, it started to back up, and when he put
his hand on the door “momentarily as the shooting began … he was actually
hit in the hand by the gunfire.”7 Id. Hall maintains the evidence
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7
While Hall asserts he was hit in the hand by gunfire, there was no evidence
of this fact presented during the non-jury trial.
(Footnote Continued Next Page)
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demonstrated only his presence at the scene, and a possible association
between Watson and Edmonds. Therefore, he concludes, the evidence was
insufficient to support his conviction of conspiracy to commit aggravated
assault.8
Conversely, the Commonwealth responds that the “‘web of evidence’
was sufficient to support the inference that [Hall] was aware of Watson’s
plan to shoot the victims.” Commonwealth’s Brief at 19. It emphasizes (1)
“the coordinated exit of the three men as soon as the victims arrived at the
scene,” (2) Hall’s approach of the victim’s vehicle and attempt to grab the
car door, and (3) Hall’s lack of fear or alarm when the shooting began. Id.
Accordingly, the Commonwealth maintains the totality of the circumstances
“exhibit the presence of an implicit agreement among the men to cause, at a
minimum, serious bodily injury to the victims.” Id. at 20.
Our review of the record, and in particular the surveillance videotape
from the shooting, reveals ample evidence to support the inference that Hall
entered into an agreement with Watson and Edmonds to cause serious
bodily injury to the victims. First, the video shows Hall and Edmonds arrive
at the Carnegie Towers, and park in the carport leaving little to no room for
the victim’s car, which arrives approximately two minutes later, to proceed
_______________________
(Footnote Continued)
8
We note the trial court did not specifically address Hall’s challenge to his
conspiracy conviction in its Pa.R.A.P. 1925(a) opinion.
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through. See Surveillance Videotape (Carport by Door) at 15:08:20-
15:11:13. Shortly thereafter, Hall and Edmonds leave their car as Watson
emerges from the apartment building. Id. at 15:11:16; (Carport Far Side)
at 15:11:16. On the video, it appears as if Hall looks at Watson, and then
moves towards the victim’s car, as Watson and Edmonds greet each other
behind Edmonds’ car. Id. at 15:11:25-15:11:26; (Carport Far Side) at
15:11:25-15:11:26. Next, Hall seems to say something to the occupants of
the car, which begins to slowly back up as Watson approaches. Id. (Carport
Far Side) at 15:11:28. The video then shows Hall put his hand on the
driver’s side door handle, immediately before Watson pulls out a gun and
begins shooting at the victims’ car. Id. at 15:11:30. Hall then backs away
from the vehicle, and watches as Bosley frantically attempts to drive away in
reverse with Watson in pursuit. Id. at 15:11:32. The video then displays
Hall calmly rejoining Edmonds near the entrance of the apartment building,
and watching as Watson flees past them. Id. at 15:11:42.
The “coordinated exit” 9 of the three conspirators when the victim’s car
arrived, Edmonds’ greeting of Watson as they passed each other, Hall’s
move to grab the victims’ car door, and Hall’s calm demeanor,
demonstrating no apparent alarm when the shooting began, all support an
inference that the conspirators were working together, and entered an
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9
Commonwealth’s Brief at 19.
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agreement to cause serious bodily harm to the victims. Further, Watson’s
firing of the weapon supplied the requisite overt act in furtherance of the
conspiracy. Accordingly, we conclude that Hall’s challenge to his conspiracy
conviction fails.
Next, Hall challenges the sufficiency of the evidence supporting his
conviction of attempted murder.
“A person may be convicted of attempted murder ‘if he takes a
substantial step toward the commission of a killing, with the specific intent in
mind to commit such an act.’” Commonwealth v. Jackson, 955 A.2d 441,
444 (Pa. Super. 2008) (citation omitted), appeal denied, 967 A.2d 958 (Pa.
2009). See 18 Pa.C.S. §§ 901, 2702. Where, as in the present case, the
defendant’s culpability is based upon an accomplice theory, the
Commonwealth must also establish that the defendant “with the intent of
promoting or facilitating the commission of the offense … aid[ed] or agree[d]
or attempt[ed] to aid such other person in planning or committing” the
crime. 18 Pa.C.S. § 306(c)(1)(ii). This Court has previously explained:
[I]n order to impose this form of criminal liability the individual
“must be an active partner in the intent to commit [a crime].”
Further, an accomplice “must have done something to
participate in the venture.” Lastly, “mere presence at the scene
is insufficient to support a conviction: evidence indicating
participation in the crime is required.” Most importantly, the law
requires some proof that a party was an active participant in a
criminal enterprise in order to impose accomplice liability. Such
a finding cannot be based upon mere assumption or speculation.
Commonwealth v. Lambert, 795 A.2d 1010, 1024 (Pa. Super. 2002)
(citation omitted), appeal denied, 805 A.2d 521 (Pa. 2002).
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Hall maintains “[t]here is nothing in the record indicating that [he]
intended to aid or promote the commission of the crime.” Hall’s Brief at 5.
Rather, he claims the videotape shows only that (1) he arrived in Edmonds’
car, which was parked with enough room for another vehicle to pass; (2) he
recognized the shooter and the victim;10 and (3) “he was walking beside the
[victim’s] car at the time that the shooting happened.” Id. Further, he
argues that when he approached the victim’s car, it actually began to back
up so that his actions made the “vehicle a more difficult target to hit and
[made] the victim’s escape easier,” by “putting them on guard.” Id. at 6, 7.
Moreover, Hall contends “his willingness to remain at the scene of the crime
should be presumed to show a lack of guilt as regards [to] the shooting.”
Id. at 7.
However, Hall’s argument is based entirely on his interpretation of
his actions on the surveillance videotape. However, the trial judge, who sat
as fact finder in Hall’s non-jury trial, viewed his actions differently. See
Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super. 2011) (stating
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10
This acknowledgement, that Hall recognized the shooter, contradicts his
argument in another section of his brief, challenging his aggravated assault
conviction, in which he asserts that he “gave no indication of recognizing the
shooter” in the surveillance video. Hall’s Brief at 9. See also id. at 2
(stating that in the video “he did not look at Mr. Watson upon leaving his
vehicle”). Upon our review of the video, however, it appears Hall looks at
Watson as Watson exits the apartment building. See Surveillance Videotape
(Carport by Door) at 15:11:25-15:11:26.
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that when a defendant is convicted following a non-jury trial, “[t]he trial
court's verdict must be accorded the same legal effect as a jury verdict.”),
appeal denied, 42 A.3d 292 (Pa. 2012). The court found that “[t]he video of
the incident showed [Hall] holding the victims’ car door closed while Watson
shot into the car.” Trial Court Opinion, 10/7/2014, at 5. These actions, the
court opined, demonstrated his culpability as an accomplice. In asserting
that the video should be interpreted in a different manner, Hall is essentially
asking “this Court to act as a fact-finder,” which we decline to do. In re
C.S., 63 A.3d 351, 358 (Pa. Super. 2013).
Rather, our review of the surveillance videotape confirms that Hall
approached the driver’s side of the victims’ vehicle, appeared to say
something to the occupants, and briefly put his hand on the door handle as
the car began to reverse, immediately before Watson pulled out a gun and
began shooting. Surveillance Videotape (Carport by Door) at 15:11:28-
15:11:31. This, coupled with his apparent lack of alarm or concern when
the shooting began, was sufficient to demonstrate Hall “attempt[ed] to aid”
Watson in the shooting. 18 Pa.C.S. § 306(c)(1)(ii). Further, Watson’s
actions in pointing a gun directly at Bosley and repeatedly firing it, was
sufficient to demonstrate Watson possessed the specific intent to kill Bosley.
See Commonwealth v. Robertson, 874 A.2d 1200, 1207 (Pa. Super.
2005) (“[S]pecific intent to kill may be inferred from the fact that the
accused used a deadly weapon to inflict injury to a vital part of the victim's
body.”). Therefore, Hall, as his accomplice, was legally responsible for
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Watson’s crimes. See Lambert, supra, 795 A.2d at 1024 (“The very
nature of accomplice liability is that one who actively and purposefully
engages in criminal activity is criminally responsible for the criminal actions
of his/her co-conspirators which are committed in furtherance of the criminal
endeavor.”) (citation omitted). Accordingly, because we conclude the trial
court’s findings are supported by the record, we agree that no relief is
warranted on this claim.
In his third and fourth issues, Hall challenges the sufficiency of the
evidence supporting his remaining convictions of aggravated assault and
REAP. We will address these claims together.
Pursuant to the Crimes Code, a person may be convicted of
aggravated assault if he “attempts to cause serious bodily injury to another,
or causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life[.]” 18 Pa.C.S. § 2702(a)(1). Moreover, a person is guilty of REAP “if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. Again, the
trial court found Hall guilty of these crimes under an accomplice theory of
liability. See Trial Court Opinion, 10/7/2014, at 6.
Similar to his previous issues, Hall argues the evidence did not support
a finding that he was aware the shooting was about to occur. With regard to
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his aggravated assault conviction, he asserts his actions as depicted on the
videotape “gave no indication [he] recognize[ed] the shooter,”11 and when
he approached the victims’ vehicle, he essentially alerted the victims to a
possible attack. Hall’s Brief at 9. Further, he emphasized that he put his
hand on the door when the car was already in motion, and he was actually
injured in the shooting. Id. With regard to his convictions of REAP, Hall
states he displayed no “reckless engagement” because there was “no
evidence on the record proving [he] had knowledge that a gun would be
shot into the vehicle[.]” Id. at 11.
In addressing Hall’s challenges to these convictions, the trial court
found that Hall’s actions, as evident on the surveillance video, demonstrated
he was an accomplice to Watson’s crimes. The court opined: “Holding three
(3) people in a car while another man fires bullets into that car clearly
demonstrate an extreme indifference to the value of human life, and placed
the passengers in danger of death and serious bodily injury.” Trial Court
Opinion, 10/7/2014, at 6. We agree. Our review of the surveillance
videotape reveals ample support for the trial court’s findings. Consequently,
Hall’s third and fourth issues fail.
In his last claim, Hall argues the trial court’s verdicts on the charges of
attempted murder and conspiracy were against the weight of the evidence.
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11
See supra, n.9.
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It is well-settled that when reviewing a weight of the evidence claim,
an appellate court does not substitute its judgment for the finder
of fact and consider the underlying question of whether the
verdict is against the weight of the evidence, but, rather,
determines only whether the trial court abused its discretion in
making its determination.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S. Ct. 1792 (U.S. 2014). For that reason, “[a] weight of the evidence
claim must be preserved either in a post-sentence motion, by a written
motion before sentencing, or orally prior to sentencing. Commonwealth v.
Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, 69 A.3d 601(Pa. 2013) (citations omitted). See Pa.R.Crim.P. 607.
Here, upon our review of the certified record, we find Hall failed to
preserve his challenge to the weight of the evidence either during
sentencing, or in his initial or supplemental post-sentence motion.
Accordingly, Hall’s final claim is waived for our review.12 See Lofton,
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12
It merits mention that in paragraph six of his supplemental post-sentence
motion, Hall raised a general claim asserting, “[t]he Commonwealth’s case
was very weak.” Supplemental Post-Sentence Motion, 6/20/2013, at ¶ 6.
While this might be construed as a challenge to the weight of the evidence,
although not specifically designated as so, we note that during the post-
sentence hearing, the trial court construed the claim as a sufficiency
argument, a characterization with which Hall’s counsel agreed. See N.T.,
9/26/2013 & 9/30/2012, at 8 (THE COURT: So is this [referring to issue
number six] a sufficiency argument also? [Hall’s Counsel]: … I would say
so, Your Honor.”). Nevertheless, even if we were to find that Hall properly
preserved such a claim, we would conclude that he failed to demonstrate the
trial court abused its discretion in denying his weight claim. See Trial Court
Opinion, 10/7/2014, at 6-8. See also Lyons, supra.
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supra, 57 A.3d at 1273 (“Failure to properly preserve the claim will result in
waiver, even if the trial court addresses the issue in its opinion.”) (citation
omitted).
Accordingly, because we conclude none of the claims raised by Hall in
this appeal merit relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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