Com. v. Walters, P.

J. S64012/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PRESTON WAYNE WALTERS, : No. 159 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 10, 2014,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0002967-2014
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 01, 2015
Preston Wayne Walters appeals from the judgment of sentence of
December 10, 2014, following his conviction of robbery.1 We affirm.
The trial court provided the following relevant facts:
A review of the record reveals the following
events: On May 3, 2014, Aida Algarin-Cruz was
working as a cashier at the Sunoco station on
Second and Maclay Streets in Harrisburg. [Bench
Trial, Notes of Testimony, December 10, 2014,
pp. 5-6]. Ms. Algarin-Cruz and cashier Patricia
Buxton were working the same shift that day. [N.T.,
12-10-14, p. 7]. Ms. Algarin-Cruz testified that she
was stocking the milkshake machine when a
gentleman walked into the convenience store, asked
for a pen and paper, and went to the lottery area to
write something down. [N.T., 12-10-14, pp. 7-8].
The gentleman, who was identified by several
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701.
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witnesses at trial as the defendant, asked
Ms. Algarin-Cruz about phone cards and then gave
her a handwritten note, [N.T., 12-10-14, p. 8]. The
note directed Ms. Algarin-Cruz to open the register
and hand over all of the money. [N.T., 12-10-14,
p. 8-9]. Ms. Algarin-Cruz testified that she felt
shocked, and handed the note to her co-worker,
Patricia Buxton. [N.T., 12-10-14, p. 9-11].
Defendant told Ms. Algarin-Cruz that someone had
taken his girlfriend hostage and if they didn’t hand
over the money, he would blow their heads off [N.T.,
12-10-14, p. 11]. Ms. Algarin-Cruz said that
Defendant’s demeanor was “scary.” [N.T.,
12-10-14, p. 12]. The cashiers told Defendant that
they would not give him any money and that,
whatever the situation, they would call the cops.
Defendant walked away at that point, and the
cashiers locked the door behind him. [N.T.,
12-10-14, p. 17].
Patricia Buxton, an eight-year employee with
Sunoco, confirmed Ms. Algarin-Cruz’s testimony.
After Ms. Cruz gave Ms. Buxton the note from
Defendant, Ms. Buxton punched the security button.
She iterated that someone had his girlfriend, and he
was looking out the window and said “they were
going to shoot us if we didn’t give [the money] to
him.” [N.T., 12-10-14, pp. 27-29]. Ms. Buxton
testified that they did not give Defendant any
money. After Defendant left the store and the
cashiers had locked him out, Ms. Buxton observed
him standing near a pay phone by Maclay Street,
and at that point memorized what he was wearing --
a gray tee shirt, wire-rim glasses, camouflage
shorts, and tennis shoes. [N.T., 12-10-14, pp. 30-
32]. When the police arrived, Ms. Buxton rode with
the officers and was able to identify Defendant on
the street. [N.T., 12-10-14, p. 32].
Officer Daniel Antoni of the Harrisburg City
Police testified that when they caught up with
Defendant and asked him what happened, he stated
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that he had been seeing a girl named Beth,[2] that
she was a drug user, and she owed money to
someone. He said that a man had come to his house
and told Defendant he would kill him if he didn’t get
the money that Beth owed to him. Specifically, he
said it was $300.00. The officers obtained the note
that Defendant had written for the cashiers at
Sunoco. [N.T., 12-10-14, p. 40]. Defendant was
taken into custody and read his Miranda rights.
Testimony from Detective Jarrett Ferrari
revealed that he re-Mirandized Defendant while he
was in the Criminal Investigation Division.
Defendant agreed to talk to Detective Ferrari without
an attorney present. [N.T., 12-10-14, p. 43]. In his
statement, Defendant revealed the following: On
the day in question he was woken up by Beth. When
he opened his door for her, another person pushed
her in and started waving a gun around, saying Beth
owed him $300.00. Beth and the other man left and
returned later. The man told Defendant that Beth
had to come up with the money and put a gun to her
head. He then put the gun near Defendant’s chest
and they all got into the man’s car. When they got
close to the Sunoco, the man parked the car and told
Beth to go get the money. Beth then turned to
Defendant and asked him to get it, at that point
Defendant entered the store, wrote the note, and
told the cashier that there was a man holding
someone hostage. Defendant left the store after the
alarm was hit, and got back into the car. The man
told him to get out, and Defendant went back home
and called 911. [N.T. 12-10-14, pp. 45-47].
Defendant took the stand and largely
confirmed what he said in his statement to
Detective Ferrari. Additionally, Defendant testified
that he asked the cashier to borrow a phone to call
the police, as there was a person outside with a gun
who would have no problem coming into the store
and shooting, and his phone was not working. [N.T.
12-10-14, p. 58].
2
Beth’s last name is not found in the record. She did not testify at trial.
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Trial court opinion, 5/28/15 at 1-4.
Following a non-jury trial, appellant was found guilty on December 10,
2014. Immediately after the trial, the trial court sentenced appellant to 10
to 20 years’ imprisonment. Appellant filed a post-sentence motion which
was denied on December 22, 2014. Appellant then filed a notice of appeal
on January 20, 2015. The trial court ordered appellant to produce a concise
statement of errors complained of on appeal, and appellant complied with
the trial court’s order on April 28, 2015, pursuant to Pa.R.A.P. 1925. The
trial court then filed an opinion.
Appellant raises the following issues for our review:
I. Whether the Commonwealth failed to present
sufficient evidence to sustain Appellant’s
conviction where Appellant was acting under
duress?
II. Whether the trial court erred in denying
Appellant’s Post-Sentence Motion where
Appellant’s conviction was against the weight
of the evidence so as to shock one’s sense of
justice where Appellant did not engage in acts
which constitute the offense of which he was
convicted?
Appellant’s brief at 5.
The first issue for our review is whether the Commonwealth presented
sufficient evidence to counter appellant’s defense of duress. As with all
sufficiency of the evidence claims, we are subjected to the following
standard:
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In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of
the evidence, the Court may not substitute its
judgment for that of the fact finder; if the record
contains support for the convictions, they may not
be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
Moreover, when 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 weight of the evidence produced, is
free to believe all, part, or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted).
Under 18 Pa.C.S.A. § 309(a),
It is a defense that the actor engaged in the conduct
charged to constitute an offense because he was
coerced to do so by the use of, or a threat to use,
unlawful force against his person or the person of
another, which a person of reasonable firmness in
his situation would have been unable to resist.
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The duress defense is unavailable if defendant, “recklessly placed himself in
a situation where it was probable that he would be subjected to duress.”
18 Pa.C.S.A. § 309(b); see also Commonwealth v. Markman, 916 A.2d
586, 606-607 (Pa. 2007). The elements of duress are (1) an immediate or
imminent threat of death or serious bodily harm; (2) a well-grounded or
reasonable fear that the threat will be carried out; and (3) no reasonable
opportunity to escape except by committing the criminal act.
Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa.Super. 1996)
(citation omitted).
After careful review of the record, we find that the evidence more than
sufficiently disproves appellant’s duress defense. The Commonwealth
presented testimony from both employees working at Sunoco who interacted
with appellant. Both employees testified that appellant, after writing a note
demanding money from the cash register, told them that his girlfriend had
been taken hostage and that he was threatened with bodily harm if he did
not get the money to whomever was holding his girlfriend hostage. Their
testimony indicated that appellant’s demeanor was “scary,” and that
appellant exited the Sunoco as soon as the employees told him that they
would be calling the police.
Appellant testified at trial in his own defense. He testified that before
he entered the Sunoco, he and Beth were walking toward the Sunoco when
Beth took off running down a nearby alleyway. Appellant also testified that
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after passing a note to the cashier at Sunoco, he asked if he could borrow a
telephone in order to call the police because his cell phone was not working.
We find that the evidence was more than sufficient to allow the trial
court to determine that appellant’s trial testimony was a fabrication and that
he did not act under any threat of duress or serious bodily injury and that he
had every opportunity to avoid committing his criminal acts. The evidence
also established that appellant had ample opportunity to escape or call for
help. Instead of asking the employees at Sunoco to call the police on his
behalf, appellant first passed them a note demanding money from the cash
register. By doing so, appellant acted with the requisite intent to commit a
robbery. Appellant’s testimony is completely uncorroborated, and the trial
court, as fact-finder, is free to disbelieve appellant’s testimony in its
entirety.3 Therefore, his defense of duress is without merit.
The second issue appellant raises is whether the trial court’s denial of
appellant’s post-sentence motion claiming that his conviction was contrary to
the weight of the evidence was an abuse of discretion.
Our standard of review for determining whether a verdict is compatible
with the weight of the evidence is well settled:
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
3
From arrest through trial, appellant provided factually different versions of
what occurred.
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Appellate review of a weight claim
is a review of the exercise of discretion,
not of the underlying question of whether
the verdict is against the weight of the
evidence. Because the trial judge has
had the opportunity to hear and see the
evidence presented, an appellate court
will give the gravest consideration to the
findings and reasons advanced by the
trial judge when reviewing the trial
court’s determination that the verdict is
against the weight of the evidence. One
of the least assailable reasons for
granting or denying a new trial is the
lower court’s conviction that the verdict
was or was not against the weight of the
evidence and that a new trial should be
granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or denying a
motion for a new trial based on a challenge to the
weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the
exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion
within the framework of the law, and is
not exercised for the purpose of giving
effect to the will of the judge. Discretion
must be exercised on the foundation of
reason, as opposed to prejudice,
personal motivations, caprice or arbitrary
actions. Discretion is abused where the
course pursued represents not merely an
error in judgment, but where the
judgment is manifestly unreasonable or
where the law is not applied or where the
record shows that the action is a result of
partiality, prejudice, bias, or ill will.
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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted) (emphasis deleted).
A fact-finder is free to believe all, part, or none of the evidence
presented. Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.
2015) (citations omitted). This court cannot assume the task of assessing
the credibility of the witnesses or evidence presented at trial, as that task is
within the exclusive purview of the fact-finder. Commonwealth v.
Hankerson, 118 A.3d 415, 420 (Pa.Super. 2015) (citations omitted).
Appellant avers that he did not have the requisite intent to be convicted of
attempted robbery because he only sought to “alert the authorities so the
individual holding appellant and [appellant’s] girlfriend hostage would be
apprehended.” (Appellant’s brief at 15.) As the trial court noted, however,
the Commonwealth produced credible evidence that appellant passed a note
to the cashiers at Sunoco demanding that they give him all the money in the
cash register, thereby indicating that appellant did possess the requisite
intent to commit a robbery. (See notes of testimony, 12/10/14 at 71.) We
therefore find the trial court did not abuse its discretion by denying
appellant’s weight of the evidence challenge.
Judgment of sentence affirmed.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/1/2015
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