Com. v. Hopson, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN HOPSON,
Appellant No. 76 EDA 2015
Appeal from the Judgment of Sentence Entered January 21, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014793-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 29, 2016
Appellant, John Hopson, appeals nunc pro tunc from the judgment of
sentence of an aggregate term of 4 to 8 years’ incarceration, imposed after
a jury convicted him of robbery (18 Pa.C.S. § 3701(a)(1)(ii)), theft by
unlawful taking (18 Pa.C.S. § 3921(a)), receiving stolen property (RSP) (18
Pa.C.S. § 3925(a)), and terroristic threats (18 Pa.C.S. § 2701(a)(1)). After
careful review, we affirm.
The trial court summarized the evidence presented at Appellant’s trial,
which commenced on November 30, 2010, as follows:
The Commonwealth presented several witnesses during
Appellant’s three-day trial, including Vanessa Montijo (“Ms.
Montijo”), Rainer Young (“Mr. Young”), Eddie Almodovar (“Mr.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Almodovar”), and Philadelphia Police Detective Joseph Garvin
(“Detective Garvin”).
Ms. Montijo testified that on January 26, 2009, she was a
bank teller at an M&T Bank located at 7121 Frankford Avenue, in
the city and county of Philadelphia, Pennsylvania. Around 11:35
a.m., a male “dressed in black from head to toe” approached Ms.
Montijo’s teller window and handed her a note stating: “This is
not a joke. You have 30 seconds to empty your drawers. No
funny stuff or I will hurt you. Take me serious.” (N.T.,
1
11/30/10, pp. 13-20).
1
The Commonwealth submitted the note into evidence as
Exhibit “C-3.”
Ms. Montijo immediately filled a bag with money, while the
male ordered her to “hurry up” and threatened to “hurt” and
“kill” her if he was “caught.” Ms. Montijo felt “threatened” and
“scared” by the male’s remarks and complied with his demands
in order “to keep [her] and … [her] coworkers safe.” After the
male left the bank with $20,644.00, Ms. Montijo advised the
bank’s head teller of the robbery and pressed the security alarm.
The bank’s surveillance cameras had photographed the robber,
who was wearing a black coat, black hat, black gloves, and dark
sunglasses. (N.T., 11/30/10, pp. 17-24; and Exhibit “C-4”).
Mr. Young testified that he had known Appellant “from the
neighborhood” for approximately three (3) years, and that he
and Appellant were incarcerated together at Bucks County
Correctional Facility in May 2009. While incarcerated, Appellant
advised Mr. Young of “a few bank robberies that he had gotten
away with,” including the robbery of M&T Bank. According to Mr.
Young, Appellant described how he saw one of the bank’s
surveillance photographs in the newspaper and “was kind of
laughing,” as the photograph obviously was of Appellant “but
nobody seemed to notice.” Mr. Young likewise had seen
Appellant’s newspaper photo and contacted the legal authorities
after Appellant described the robbery in several jailhouse
conversations.2 In June 2009, Mr. Young gave a “statement”
about these conversations to Detective Garvin and Special Agent
for the Federal Bureau of Investigation (FBI), Todd Berry. (N.T.,
11/30/10, pp. 36-56).3
2
Mr. Young testified that the man in the bank’s
surveillance photographs is Appellant. (N.T., 11/30/10,
pp. 36-40).
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3
At the time of trial, Mr. Young had a criminal history that
included a theft conviction in 2001 and a guilty plea to
theft charges in 2004. Mr. Young also admitted that he
used several aliases in the past. In his transcription of Mr.
Young’s statement, which the Commonwealth introduced
as Exhibit “C-5C,” Detective Garvin indicated that Mr.
Young contacted the authorities because he sought to
obtain an early release from incarceration so that his child
would not be placed in foster care. Although Mr. Young
testified at trial that he was concerned about his child[’s]
being placed in foster care, he claimed that the
Commonwealth neither offered nor bestowed him any
favorable treatment in exchange for his statement and
testimony. (N.T., 11/30/10, pp. 43-56).
Mr. Almodovar testified that in the Spring or Summer of
2009, while [he was] in custody and awaiting sentenc[ing] on
robbery charges, he contacted Detective Garvin and Agent Berry
and advised that an individual approached him to buy drugs in
January or February of 2009. The individual showed Mr.
Almodovar a bag of money and advised that he robbed the M&T
Bank on Frankford Avenue. Around the time of this encounter,
Mr. Almodovar saw the newspaper photo of the robbery suspect
and “thought” the individual that approached him was the same
person from the photo. (N.T., 12/1/10, pp. 4-20).4
4
At the time of trial, Mr. Almodovar was serving a fifteen
(15) to thirty (30) year[] sentence on robbery-related
charges. Mr. Almodovar testified that before being
sentenced on these charges, he spoke to Detective Garvin
and Agent Berry about Appellant and several other
individuals, hoping that his cooperation would favorably
affect his sentence. (N.T., 12/1/10, pp. 13-20).
Detective Garvin testified that he investigated the robbery
and provided the bank’s surveillance photographs to the
Philadelphia Daily News. After the newspaper published one of
the photos, Detective Garvin was contacted by Messrs.
Almodovar and Young, whom the detective interviewed,
respectively, in March 2009 and June 2009. Detective Garvin
testified that Messrs. Almodovar and Young gave statements
advising that an individual named John Hopson separately
approached each of them, at different times and different places,
and admitted to robbing the M&T Bank. To confirm that Messrs.
Almodovar and Young were speaking of the same person, the
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detective showed them photographs of Appellant that the
Commonwealth subsequently introduced at trial as Exhibits “C-9”
and “C-10.” During their respective interviews, Mr. Almodovar
wrote on Exhibit “10” that the photographed individual is the
“person who was bragging about [r]obbing the bank,” and Mr.
Young wrote on Exhibit “C-9” that the photographed individual is
the “person who admitted” robbing the bank. (N.T., 12/01/10,
pp. 20-44; and Exhibits “C-9” and “C-10”).5
5
This [c]ourt admitted the police photographs over the
objections of defense counsel. (N.T., 12/01/10, pp. 25-27,
29-30, 43-50).
Trial Court Opinion (TCO), 6/1/15, at 2-4 (emphasis omitted).
Based on this evidence, the jury convicted Appellant of the above-
stated offenses. On January 21, 2011, he was sentenced to an aggregate
term of 4 to 8 years’ incarceration. Appellant did not file a post-sentence
motion or a direct appeal. However, on May 2, 2011, he filed a timely, pro
se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Counsel was appointed and filed an amended petition on Appellant’s
behalf, seeking, inter alia, the restoration of his direct appeal rights. After
conducting a hearing, the PCRA court granted Appellant’s petition, thus
reinstating his right to file this direct appeal nunc pro tunc.1 Appellant filed
a timely notice of appeal, and also timely complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant presents the following issues for our review:
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1
The court’s order stated that all other claims presented in Appellant’s PCRA
petition were deemed withdrawn, without prejudice to his right to raise
those claims following our disposition of Appellant’s direct appeal. See Trial
Court Order, 1/7/15.
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1. Whether the evidence was sufficient to prove [Appellant]
guilty of the following charges: Robbery § 3701; Theft § 3921;
RSP § 3925; and Terroristic Threats § 2706 where the court
improperly admitted evidence through the testimony of the
detective when the witnesses did not adopt the written
statements and where the testimony given by the detective was
not elicited from or presented by the witnesses?
2. Whether the verdict was against the weight of the evidence
where improperly admitted evidence was utilized by the jury to
reach a verdict that shocks one sense of justice?
3. Whether the trial court erred by permitting a witness to
identify [] Appellant as the person depicted in the photo when
said witness was not an eye witness to the act depicted in the
photo and where his conclusion that Appellant was the person in
the photo should have been determined by the jury?
4. Whether the trial court erred by admitting hearsay testimony
of Detective Garvin who testified about information he received
from Young when Young did not testify regarding notations on
the back of C9 and information the detective received from an
anonymous tip that provided Appellant’s name?
5. Whether trial counsel was ineffective for failing to: investigate
an alibi witness; consult with the client for trial preparation, to
investigate Commonwealth witnesses for trial; … object to
admission of C9 and C10; object to the detective’s reading of
writing on the back of a photo that had not been testified to by
the witness; move the court for a curative instruction when []
Young was permitted to testify regarding other bank robberies
relating to Appellant; object to the Commonwealth[’s] question
to the detective of whether [] Appellant gave a statement to
police; and file a post[-]sentence motion?
Appellant’s Brief at 8-10.
Appellant first challenges the sufficiency of the evidence to sustain his
convictions of robbery, theft, RSP, and terroristic threats.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
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133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Initially, in Appellant’s Rule 1925(b) statement, he did not specify
which element(s) of the above-offenses the Commonwealth failed to prove;
instead, he baldly claimed that, “the evidence was insufficient to prove
[Appellant] guilty of the following charges: Robbery § 3701; Theft § 3921;
RSP § 3925; and Terroristic Threats § 2706.” Pa.R.A.P. 1925(b) Statement,
2/12/15, at 1. Additionally, in his brief to this Court, Appellant offers no
discussion of how the Commonwealth’s evidence was insufficient to prove
any specific element(s) of the various crimes for which he was convicted. As
such, we conclude that Appellant’s boilerplate presentation of his sufficiency
challenge in his Rule 1925(b) statement, and his underdeveloped argument
on appeal, waives his sufficiency of the evidence issue for our review. See
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding
the appellant’s sufficiency claim waived where his argument was
underdeveloped, he did not “set forth the elements of the crimes he was
convicted” or “which specific elements were not met[,]” and he failed in his
Rule 1925(b) statement to “‘specify the element or elements upon which the
evidence was insufficient’ in order to preserve the issue for appeal”)
(citations omitted).
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Nevertheless, even had Appellant preserved his sufficiency claim, we
would deem it meritless. Appellant’s entire sufficiency argument centers on
challenging the court’s admission of certain evidence. While Appellant does
not explicitly state as much, he suggests that this Court should assess only
the properly admitted evidence, and conclude that it was inadequate to
sustain his convictions.
To do so would be contrary to our standard of review. In analyzing
the sufficiency of the evidence, we evaluate all of the evidence that was
presented to the fact-finder during the trial, “without consideration as to the
admissibility of that evidence.” Commonwealth v. Smith, 568 A.2d 600,
602-603 (Pa. 1989).
The question of sufficiency is not assessed upon a diminished
record. Where improperly admitted evidence has been allowed
to be considered by the jury, its subsequent deletion does not
justify a finding of insufficient evidence. The remedy in such a
case is the grant of a new trial.
Id. at 603 (internal citations omitted); see also Koch, 1001 (“[I]n
conducting our analysis [of the sufficiency of the evidence], we consider all
of the evidence actually admitted at trial and do not review a diminished
record.”). Accordingly, even if preserved, we would conclude that
Appellant’s challenge to the sufficiency of the evidence is meritless.
In Appellant’s second issue, he argues that the jury’s verdict was
contrary to the weight of the evidence. To properly preserve a challenge to
the weight of the evidence, that claim must be raised before the trial court.
See Pa.R.Crim.P. 607(A). Appellant did not file a post-sentence motion
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raising this issue, and he fails to point to where in the record he preserved
this claim prior to sentencing. Pa.R.A.P. 2119(e) (directing that the
appellant must set forth in the argument portion of his brief where in the
record he preserved the issue before the trial court). Accordingly,
Appellant’s challenge to the weight of the evidence is also waived.
Next, Appellant briefly argues that the trial court erred by allowing
Rainer Young to identify Appellant as the person seen in a photograph taken
by a security camera in the bank, where Young was “neither associated with
the commission of the crime nor a witness to the crime….” Appellant’s Brief
at 19. Appellant contends that permitting Young’s identification “usurped
the province of the jury[,]” which is tasked with “disposing issues of fact in
criminal cases.” Id. at 18 (quoting Commonwealth v. Sanchez, 36 A.3d
24, 55 (Pa. 2011)).
Again, we are constrained to deem Appellant’s claim waived. The only
issue presented in his Rule 1925(b) statement that could be viewed as
including the above-stated argument is the following: “The trial court erred
by permitting a witness to identify [Appellant] in a video when said witness
was not an eyewitness to the act depicted in the video[.]” Pa.R.A.P. 1925(b)
Statement, 2/12/15, at 2. In its opinion, the trial court declined to address
this issue, explaining:
There was no “video” introduced at trial and, therefore,
Appellant’s appeal on this ground is incomprehensible. Beyond
that, since every witness that testified was shown photographs
from the bank’s surveillance camera, Appellant’s bland reference
to “said witness” is inexcusably vague and any appeal on this
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ground is waived. Commonwealth v. Cannon, 954 A.2d 1222,
1228 (Pa. Super. 2008) (“Where an appellant fails to identify the
issues sought to be pursued on appeal in a concise manner, the
trial court is impeded in its preparation of a legal analysis which
is pertinent to those issues. … Essentially, when the trial court
has to guess what issues an appellant is appealing, that is not
enough for meaningful review.”).
TCO at 14 (emphasis in original).
We agree with the trial court that Appellant’s reference to a video,
rather than a photograph, and his using “said witness” rather than
identifying Young by name, render his Rule 1925(b) statement inexcusably
vague. See also Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely
identify each ruling or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the judge.”). This is
especially true where both Young and Almodovar were shown a picture
taken from the bank’s surveillance camera, over defense counsel’s
objections, and were asked questions regarding the identity of the person in
the photograph. See N.T. Trial, 11/30/10, at 40-41; N.T. Trial, 12/1/10, at
9-11. We also stress that even if the court were able to identify Appellant’s
claim as pertaining to Young’s testimony, Appellant’s Rule 1925(b)
statement only explains that this evidence should not have been admitted
because Young was not an eyewitness; at no point did Appellant allude to his
argument, herein, that Young’s testimony ‘usurped the province of the jury.’
Accordingly, we agree with the court that Appellant’s third issue is waived.
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In any event, even if Appellant had preserved his claim that it was
improper to admit Young’s testimony that Appellant was the person in the
photograph, we would deem his argument meritless.
The standard of review employed when faced with a challenge to
the trial court's decision as to whether or not to admit evidence
is well settled. Questions concerning the admissibility of evidence
lie within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court's decision absent a clear
abuse of discretion. Commonwealth v. Hunzer, 868 A.2d 498(Pa. Super. 2005). Abuse of discretion is not merely an error of
judgment, but rather 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. Id.Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation
omitted).
Here, the Commonwealth argues, and we agree, that Young’s
statement that Appellant was the person in the photograph constituted
admissible opinion testimony. The applicable version of Pennsylvania Rule of
Evidence 701, addressing opinion testimony by a lay witness, provides, in
pertinent part:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are rationally based on the
perception of the witness, helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and
not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
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See Pa.R.E. 701.2
In this case, Young’s challenged testimony satisfies the requirements
of Rule 701. First, Young’s opinion that Appellant was the individual in the
photograph was based upon his own perception. Specifically, Young testified
that he recognized Appellant in the picture because he had known Appellant
for three years, and had interacted with Appellant when they lived in the
same neighborhood. See N.T. Trial, 11/30/10, at 40-41. Second, a fact
that was in issue at trial was whether Appellant was the person depicted in
the photograph taken during the bank robbery. Thus, Young’s opinion that
Appellant was the person seen in the photograph was helpful to determining
this fact. Third, Young’s opinion was not based on any specialized or
technical knowledge that would fall within the scope of Rule 702, pertaining
to expert testimony. Accordingly, even if properly preserved, we would find
no merit in Appellant’s challenge to the admission of Young’s opinion
testimony that Appellant was the person in the photograph from the bank’s
surveillance camera.
In Appellant’s next issue, he argues that the trial court erred by
admitting hearsay testimony by Detective Garvin. Appellant’s confusing
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2
Effective March 18, 2013, our Supreme Court rescinded and replaced this
rule of evidence. See Pa.R.E. 701, Comment. Appellant's trial preceded the
effective date of the revised rule and, thus, we apply the former version of
Rule 701 herein.
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argument in support of this claim seemingly identifies two portions of
purported hearsay testimony by the detective, which we will address in turn.
First, Appellant takes issue with the fact that Detective Garvin was
“permitted to testify at trial regarding a notation on the back of
[Commonwealth’s Exhibit] C9….” Appellant’s Brief at 21. That exhibit was a
copy of a photograph that was shown to Ranier Young by the detective
during his interview of Young. Appellant specifically challenges testimony by
the detective during which the Commonwealth showed him the photograph
and asked him if he could read the writing on back of it. See id. (citing N.T.
Trial, 12/1/10, at 26). Detective Garvin read the notation, which stated:
“This is the person who admitted doing the bank robberies at the M&T
Banks, Aramingo and Mayfair branches.” Id. at 26-27. The detective
testified that the notation was signed by Rainer Young, and that he was
present when Young wrote the statement and signed it. Id. at 27.
Appellant argues that because “no testimony regarding the notation had
been provided by Young[,]” the detective’s testimony about what Young
wrote on the photograph was inadmissible hearsay. Appellant’s Brief at 21.
In Appellant’s Rule 1925(b) statement, he presented this issue as
follows: “The trial court erred by admitting the testimony of Detective Garvin
who testified regarding hearsay statements by Mr. Almodovar, photos
shown to Mr. Almodovar and his responses, and the admission of
testimony regarding an anonymous tip[.]” Pa.R.A.P. 1925(b) Statement,
2/12/15, at 2 (emphasis added). Appellant did not specifically challenge the
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testimony by Detective Garvin about Young’s written notation on the
photograph and, thus, the trial court did not address this claim in its opinion.
Accordingly, Appellant waived his challenge to Detective Garvin’s testimony
pertaining to Young’s written notation on the back of the photograph. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).
Appellant also argues that the court erred by allowing Detective Garvin
“to testify, over objection, that he received Appellant’s name from an
anonymous tip, when the tipster did not testify at trial.” Appellant’s Brief at
21 (citing N.T. Trial, 12/1/10, at 30-31). While we deem this claim
preserved, despite that Appellant did not specifically point to what testimony
he was challenging in his Rule 1925(b) statement, we conclude that the
court did not abuse its discretion in admitting this evidence. In the specific
portion of the record cited by Appellant in his brief, Detective Garvin
provided the following testimony regarding an anonymous tip:
[The Commonwealth:] And, detective, based on your interviews
with Eddie Almodovar and Rainer Young, did you speak to
anyone else involving this investigation?
[Detective Garvin:] Yes, ma’am. I received a telephone tip from
a source --
[Defense Counsel:] Objection, Your Honor, to hearsay.
THE COURT: Without saying what this tipster said, just tell us
what you did, please.
…
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[Detective Garvin]: Based on the information I received, I was
led to believe that --
[Defense Counsel]: Objection.
THE COURT: Just tell us what you did, detective
[Detective Garvin]: I put that information on the affidavit of
probable cause.
N.T. Trial, 12/1/10, at 30-31.
While Appellant baldly states that this testimony constituted
inadmissible hearsay, he provides no further discussion, nor any legal
authority, to support that assertion. Hearsay is defined as “a statement that
… the declarant does not make while testifying at the current trial or
hearing[,]” that is “offer[ed] in evidence to prove the truth of the matter
asserted in that statement.” Pa.R.E. 801(c). Detective Garvin did not state
what the anonymous caller told him; instead, he simply explained that he
received information from a caller that he put into the affidavit of probable
cause. The jury was never explicitly apprised of what that information
included. Moreover, even if the jury could have inferred from the detective’s
testimony that the caller identified Appellant as the bank robber, Appellant
does not provide any legal authority to support that raising such an
inference, alone, turns the detective’s non-hearsay testimony into
inadmissible evidence. Accordingly, Appellant has not demonstrated that
the trial court abused its discretion by admitting Detective Garvin’s
testimony regarding the anonymous caller.
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In Appellant’s final issue, he raises eight claims of trial counsel
ineffectiveness. We decline to review these claims on direct appeal. In
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court
reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), that, absent certain circumstances, claims of ineffective assistance of
counsel should be deferred until collateral review under the PCRA. Holmes,
79 A.3d at 576. The specific circumstances under which ineffectiveness
claims may be addressed on direct appeal are not present in this case. See
id. at 577-78 (holding that the trial court may address claim(s) of
ineffectiveness where they are “both meritorious and apparent from the
record so that immediate consideration and relief is warranted,” or where
the appellant’s request for review of “prolix” ineffectiveness claims is
“accompanied by a knowing, voluntary, and express waiver of PCRA
review”). Accordingly, Appellant must wait to present these claims on
collateral review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2016
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