Com. v. Walker, J

J-S42005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON WALKER,
Appellant No. 3204 EDA 2013
Appeal from the Judgment of Sentence November 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012793-2012
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 28, 2015
Appellant, Jason Walker, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County on November
14, 2013, following a bench trial. We affirm.
The trial court summarized the facts of this case as follows:
Complainant Kendra Devine testified that on June 30,
2012, she entered into an agreement with a third party simply
identified as Sharrief[1] to “scheme the bank” the following day.
Ms. Devine testified her scheme required her to purchase stolen
checks from a third party, and acquire ATM cards and pin
numbers linked to valid bank accounts of a separate party. She
would then forge a check, deposit it into the account via ATM
machine, and if the bank transferred all or a portion of the funds
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
While the trial court spells “Sharief” variously as “Sharrief,” the notes of
testimony establish “Sharief” as the correct spelling. N.T., 5/10/13, at 22.
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to the account automatically, withdraw the amount made
available. At approximately 1 pm the next day, July 1, 2012,
Ms. Devine met Sharieff on the corner of 78th and Elmwood.
Sharieff was accompanied by [Appellant] and the co-defendant
Henry Clay.[2]
Ms. Devine entered the vehicle and the group proceeded to
the TruMark Bank at 18th and Market St. Ms. Devine left the car
with the ATM card and pin number of an account belonging to a
female acquaintance of the co-defendant. She approached the
bank alone, while the other members of her party remained a
distance away. After depositing a forged check into the account,
she was able to immediately withdraw $460 from the ATM, but
concealed this fact from the others by hiding the money in her
shoe.
The group next proceeded on foot to Chase Bank, located
several blocks away, where [Appellant] had an account. Ms.
Devine’s attempt to withdraw money from this second account
was unsuccessful. When she re-entered the vehicle, she did so
voluntarily as she believed she was being brought back to her
home for the day. But the car drove past the exit to Ms.
Devine’s home, at which time [Appellant] and his associates
immediately accused Ms. Devine of withdrawing and concealing
money from the TruMark ATM. From this time forward, Ms.
Devine testified she was held against her will. After
approximately five minutes of driving, the car came to a stop
near Spring Garden Street, where Ms. Devine testified she was
squeezed around the neck and hit until she conceded the money
at issue was hidden in her shoe. Ms. Devine testified that after
the discovery of the money she was punched by the co-
defendant and [Appellant] and as a result, she got a busted lip.
The parties resumed driving and Ms. Devine began to
secretly dial 9-1-1 from the cellphone she kept in her pocket.
Because 9-1-1 calls are recorded, much of the subsequent
exchanges between Ms. Devine and the defendants were
captured on tape over the course of multiple 9-1-1 calls. Ms.
Devine was later played these tapes, and identified [Appellant]
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2
The notes of testimony establish the co-defendant’s name as Horace Clay.
N.T., 5/10/13, at 1.
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and his accomplices as the other voices on the 9-1-1 recordings,
a transcript of which was entered into evidence as exhibit C-3.
The recordings support Ms. Devine’s testimony that she was told
she would get home safe if the money from her second bad
check was placed in [Appellant’s] account by 9 pm. The group
also made references to violence being done to Ms. Devine. On
Page 11 of the 9-1-1 transcript the party identified as Sharieff
says[,] “I’m going to say, ‘yeah, I hit her but’—‘yeah she robbed
us.’” The co-defendant states on Page 10 of the transcript[,] “I
ain’t even going to put my hands on you no more.”
After approximately thirty minutes, the car came to a stop
at 19th Street and Montgomery Avenue. At this time, the party
identified as Sharieff exited the vehicle and entered a home on
the corner of the block. Ms. Devine testified that Sharieff
returned with a gun. This testimony was supported by the
transcript of the 9-1-1 calls, which recorded Ms. Devine’s
exclamation[,] “You just got a gun!” and Sharieff’s response[,]
“I’m definitely strapped. Four pound and everything.” Ms.
Devine testified that “strapped” refers to carrying a gun and
“four pound” means .45 semiautomatic handgun. [Appellant]
subsequently advised Ms. Devine multiple times that her safe
return home hinged on the successful transfer of money to
[Appellant’s] account. “If that money on there[,] I’m going to
make sure you get home safe;” “If that money ain’t on there
then you lost out here.”
After roughly fifteen to twenty minutes stopped at 19th
Street and Montgomery Avenue, Sergeant Vincent Morris of the
Philadelphia Police Department arrived on the scene in response
to a 9-1-1 report of a woman screaming. Sergeant Morris
approached the group to check if they were okay. At this time
Ms. Devine mouthed the words “help me.” Investigating further,
Sergeant Morris testified Ms. Devine had a bloody lip and was
shaking. In response, Sergeant Morris detained [Appellant] and
the other members of his group.
Trial Court Opinion, 7/30/14, at 5–7 (internal citations to record omitted).
Appellant was arrested on July 1, 2012, and charged with robbery,
kidnapping, conspiracy, possessing an instrument of crime (“PIC”),
terroristic threats, simple assault, and false imprisonment. Appellant waived
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a jury trial and proceeded to a bench trial on May 10, 2013. The trial court
found Appellant not guilty of robbery, kidnapping, conspiracy, and PIC, and
guilty of terroristic threats, simple assault, and false imprisonment. On
August 8, 2013, the trial court sentenced Appellant to one to five years of
imprisonment for terroristic threats and consecutive terms of one to two
years each for simple assault and false imprisonment, for an aggregate
sentence of three to nine years.
On August 14, 2013, Appellant filed a post-sentence motion, which the
trial court granted in part and denied in part on November 14, 2013. N.T.,
11/14/13, at 18. The trial court denied Appellant’s claims relating to the
sufficiency and weight of the evidence but amended Appellant’s sentence for
terroristic threats to one to two years, for a new aggregate sentence of three
to six years of imprisonment. Id. Appellant filed a notice of appeal on
November 18, 2013. Pursuant to trial court order, Appellant filed a timely
statement pursuant Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues:
I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
FINDING OF GUILTY BEYOND A REASONABLE DOUBT ON
THE CHARGES OF TERRORISTIC THREATS AND FALSE
IMPRISONMENT.
II. THE FINDING OF GUILTY ON THE CHARGES OF THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF
GUILT BEYOND A REASONABLE DOUBT ON THE CHARGES
OF SIMPLE ASSAULT, TERRORISTIC THREATS AND FALSE
IMPRISONMENT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
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Appellant’s Brief at 6 (verbatim).
Appellant’s first issue relates to the sufficiency of the evidence. In
reviewing the sufficiency of the evidence, we must determine whether the
evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). It is within
the province of the fact-finder to determine the weight to be accorded to
each witness’s testimony and to believe all, part, or none of the evidence.
Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015).
The Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Vogelsong, 90 A.3d 717 (Pa. Super. 2014), appeal denied, 102 A.3d 985
(Pa. 2014). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Rogal, ___ A.3d ___, 2015 Pa. Super. 148 (filed July 7,
2015).
The trial court held that Appellant’s sufficiency-of-the-evidence claim
was too vague to permit the trial court to conduct meaningful review. Trial
Court Opinion, 7/30/14, at 3–4. In his Pa.R.A.P. 1925(b) statement,
Appellant merely averred that “[t]he evidence was insufficient to sustain a
finding of guilty beyond a reasonable doubt on the charges of terroristic
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threats and false imprisonment.” Pa.R.A.P. 1925(b) Statement, 11/26/13,
at 1. The trial court determined that Appellant’s sufficiency-of-the-evidence
claim was waived due to the vagueness of the Rule 1925 statement and its
failure to identify any argument, thereby requiring the trial court “to guess”
as to the basis for the issue. Trial Court Opinion, 7/30/14, at 4.
Rule 1925 requires that an appellant “concisely identify each ruling or
error that the appellant intends to challenge with sufficient detail to identify
all pertinent issues[.]” Pa.R.A.P. 1925(b)(4)(ii). “When a court has to guess
what issues an appellant is appealing, that is not enough for meaningful
review.” Commonwealth v. Allshouse, 969 A.2d 1236, 1239 (Pa. Super.
2009) (“When an appellant fails adequately to identify in a concise manner
the issues sought to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues.”).
Specifically, we have stated that “[i]n order to preserve a challenge to
the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b)
statement must state with specificity the element or elements upon which
the appellant alleges that the evidence was insufficient.” Commonwealth
v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). The Court further
explained that “[s]uch specificity is of particular importance in cases where,
as here, the appellant was convicted of multiple crimes each of which
contains different elements that the Commonwealth must prove beyond a
reasonable doubt.” Id. at 344. Failure to identify what specific elements
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the Commonwealth failed to prove at trial in a Rule 1925(b) statement
renders an appellant’s sufficiency-of-the-evidence claim waived for appellate
review. Id.
Here, Appellant was convicted of three different crimes, each of which
involved different elements. Appellant’s 1925(b) statement questioned
whether the Commonwealth put forth sufficient proof to support two of his
three convictions, but failed to state with specificity any particular elements
of the crimes the Commonwealth failed to prove. Thus, the trial court was
forced to speculate about the possible errors because Appellant did not
identify them. Accordingly, Appellant’s sufficiency claim is waived. See
Commonwealth v. Veon, 109 A.3d 754 (Pa. Super. 2015) (sufficiency-of-
evidence issue waived where Pa.R.A.P. 1925(b) statement “is sweeping and
generalized [in that it] maintains that the evidence was insufficient, but
utterly fails to pinpoint any . . . specific element of [the appellant’s]
convicted crimes that lacked sufficient evidence”) (citing Garland, 63 A.3d
339).
Furthermore, even if not waived, Appellant’s sufficiency claim would
afford him no relief. In his appellate brief, Appellant lists specific reasons
why he believes the evidence was insufficient to sustain the verdict.
Appellant’s Brief at 13–16. He bases his sufficiency argument relating to
false imprisonment on the contention that the Commonwealth failed to prove
that Appellant restrained Ms. Devine’s liberty. Appellant’s Brief at 13.
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Relating to his conviction for terroristic threats, Appellant maintains the
Commonwealth failed to establish that he made any threats to Ms. Devine.
Id. at 14.
In pertinent part, the Crimes Code provides that a person commits
false imprisonment, a misdemeanor of the second degree, “if he knowingly
restrains another unlawfully so as to interfere substantially with his liberty.”
18 Pa.C.S. § 2903(a). Furthermore, “A person is legally accountable for the
conduct of another person when he is an accomplice of such other person in
the commission of the offense.” 18 Pa.C.S. § 306(b)(3). A person is an
accomplice if he “aids or agrees or attempts to aid such other person in
planning or committing” an offense. 18 Pa.C.S. § 306(c)(2).
The trial court, addressing the merits in the alternative, stated:
The facts found at trial clearly fit the elements of False
Imprisonment as Ms. Devine was held against her will for over
half an hour, and transported several miles away. First, 19th
and Montgomery Avenue, the location where Sergeant Morris
found the complainant, is more than three miles from the
location of the Chase Bank ATM, where Ms. Devine testified she
was first held against her will. Additionally, the 9-1-1 tapes
capturing this trip span more than thirty minutes. Further, the
transcript of the 9-1-1 calls reveal[s] the parties were fully
aware they were keeping Ms. Devine in the car against her will.
Captured on the transcript are several statements where Ms.
Devine was told she would get home safe[ly] if the money from
her second check was placed in the account by 9 pm. (N.T.,
5/10/13 pg. 62).
Trial Court Opinion, 7/30/14, at 9.
Appellant suggests that as a backseat passenger, he was not in control
of the vehicle and “did nothing in any way to restrain Devine.” Appellant’s
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Brief at 13. Appellant fails to note that as co-defendant Horace Clay drove
the vehicle, Appellant was positioned in the back seat of the vehicle strong-
arming the victim and hitting her. N.T., 5/10/13, at 38. While the men
were driving Ms. Devine and assuring her that they would return her to the
pick-up location, they drove past the exit whereupon Appellant put the
victim “in a headlock” and choked her. Id. at 34. This restraint on Ms.
Devine’s liberty is sufficient to prove false imprisonment. See
Commonwealth v. Belgrave, 391 A.2d 662 (Pa. Super. 1978) (victim’s
wife’s testimony that she saw her husband being assaulted by several men
in back seat of car, including defendant, and that car was then driven away
with her husband inside it and still being assaulted, was sufficient to prove
defendant’s guilt of false imprisonment); In re T.G., 836 A.2d 1003, 1009
(Pa. Super. 2003) (evidence that the appellant grabbed the victim by her
arm, took her inside a house with the door closed, pulled her hair, and would
not permit her to leave was sufficient evidence of false imprisonment).
Thus, we would find the evidence sufficient to prove false imprisonment.
The crime of terroristic threats is defined as:
(a) Offense defined.--A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly,
a threat to:
(1) commit any crime of violence with intent to
terrorize another;
(2) cause evacuation of a building, place of assembly
or facility of public transportation; or
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(3) otherwise cause serious public inconvenience, or
cause terror or serious public inconvenience with
reckless disregard of the risk of causing such terror
or inconvenience.
18 Pa.C.S. § 2706(a). The trial court found Appellant guilty of subsection
(a)(1). Trial Court Opinion, 7/30/14, at 9. Referring to the statement from
the 9-1-1 recordings,3 the trial court noted that there “were clearly threats
of harm . . . to Ms. Devine if she did not get them money by a set deadline.”
Id. Males in the vehicle are heard stating, “If that money on [sic] there
then I’m gonna make sure you get home safe. . . . If that money ain’t on
[sic] there then you lost out here.” N.T., 5/10/13, at 116. Appellant and
his co-horts beat Ms. Devine in the back seat of the car while the vehicle
was driven around for thirty minutes, threatening her safety unless she
produced the money. Id. at 36–39. When they removed her from the
vehicle, Appellant and the other two men surrounded her, telling her she
would not be harmed if she provided the money by 9:00 p.m. Id. at 64.
When Sergeant Morris came upon the group as a result of the 9-1-1 calls,
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3
Both Appellant and the Commonwealth, in addition to the trial court, refer
to a transcript from the 9-1-1 tapes, which was admitted into evidence at
trial. N.T., 5/10/13, at 63, 134. That transcript is not in the record certified
to us on appeal. The appellant “has the duty to ensure that the record is
complete for purposes of appellate review, Commonwealth v. Griffin, 65
A.3d 932, 936 (Pa. Super. 2013),” and therefore, we could have found this
issue waived on this basis as well. Commonwealth v. Gonzalez, 109 A.3d
711, 725 (Pa. Super. 2015). We rely on the testimony relating to the 9-1-1
transcript in addressing this portion of the sufficiency claim in the
alternative.
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Ms. Devine, who was shaking and had a bloody lip, mouthed the words,
“Help me.” Id. at 125–126.
In addressing the sufficiency of the evidence supporting a conviction of
terroristic threats, this Court has stated as follows:
The harm sought to be avoided is the psychological distress that
follows an invasion of the victim’s sense of personal security.
See [Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597,
600 (1996)] id. Consequently, “neither the defendant’s ability
to carry out the threat nor the victim’s belief that it will be
carried out is an essential element of the crime.” Id.; see also
Commonwealth v. Hudgens, 400 Pa.Super. 79, 582 A.2d
1352, 1358 (1990). Similarly, “it is unnecessary for an
individual to specifically articulate the crime of violence which he
or she intends to commit where the type of crime may be
inferred from the nature of the statement and the context and
circumstances surrounding the utterance of the statement.” Id.
Thus, “a direct communication between the defendant and the
victim is not required to establish the crime.” In re L.A., 853
A.2d 388, 392 (Pa. Super. 2004).
Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. 2009), aff’d
in part, rev’d in part on other grounds, 30 A.3d 1105 (Pa. 2011). We find
the evidence of record sufficient to support the conviction for terroristic
threats.
Appellant also challenges the weight of the evidence supporting the
verdict. The trial court will award a new trial only when the jury’s verdict is
so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015). “In
determining whether this standard has been met, appellate review is limited
to whether the trial judge’s discretion was properly exercised, and relief will
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be granted only where the facts and inferences of record disclose a palpable
abuse of discretion.” Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa.
2008). Thus, “the trial court’s denial of a motion for a new trial based on a
weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
Initially, we note that while the weight claim was preserved in
Appellant’s post-sentence motion, our discussion regarding the vagueness of
the Rule 1925(b) statement is applicable, in whole, to this issue as well.
Thus, we find the weight-of-the-evidence issue waived.
Even if not waived, the issue has no merit. In short, Appellant’s
weight claim contends that Ms. Devine was an incredible witness. This Court
has stated that a new trial is not warranted based on a mere assertion of “a
reassessment of the credibility of witnesses.” Gonzalez, 109 A.3d at 724
(citing Commonwealth v. Bruce, 916 A.2d 657, 665 (Pa. Super. 2007)).
The trial court, as finder of facts, credited Ms. Devine’s testimony. After
careful review, we would not find the verdicts so contrary to the evidence as
to shock one’s sense of justice.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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