Com. v. Galloway, A.

J. S37031/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALI GALLOWAY, : No. 3181 EDA 2018
:
Appellant :
Appeal from the PCRA Order Entered September 28, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002930-2009
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2019
Ali Galloway appeals pro se from the September 28, 2018 order entered
in the Court of Common Pleas of Philadelphia County dismissing his second
PCRA petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the procedural history as follows:
On May 11, 2010, [appellant] was convicted of
robbery (18 Pa.C.S.[A.] § 3701(a)(1)(ii)), aggravated
assault (18 Pa.C.S.[A.] § 2702(a)), and criminal
conspiracy to commit both aggravated assault and
robbery (18 Pa.C.S.[A.] § 903(a)). On June 22, 2010,
the [trial c]ourt imposed consecutive terms of 5 to
10 years for robbery, 5 to 10 years for aggravated
assault, and 5 to 10 years for criminal conspiracy, for
an aggregate sentence of 15 to 30 years[’]
incarceration.
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On October 7, 2011, the Superior Court affirmed
[appellant’s] judgment of sentence. [Appellant] then
filed a pro se petition under the Post Conviction Relief
Act (“PCRA”) on August 16, 2013. On February 28,
2014, Joseph Schultz, Esquire was appointed to
represent [appellant]. On November 9, 2015,
pursuant to Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988), Mr. Schultz filed a motion to
withdraw as counsel and a letter stating that
[appellant’s] petition was untimely (“Finley letter”).
On November 10, 2015, the [PCRA c]ourt issued
notice, pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of
its intention to dismiss [appellant’s] petition without a
hearing. [Appellant] submitted a response to the
[PCRA c]ourt’s 907 Notice (“907 Response”) on
November 29, 2015, claiming that he had requested
appellate counsel to file a petition for allowance of
appeal in the Pennsylvania Supreme Court.
Thereafter, Mr. Schultz filed an amended PCRA
petition alleging that appellate counsel was ineffective
for failing to petition for allowance of appeal.
Following an evidentiary hearing on the issue, on
July 1, 2016, the [PCRA c]ourt reinstated [appellant’s]
right to file a petition for allowance of appeal.
Thereafter, [appellant] filed a petition for allowance of
appeal, and, on January 31, 2017, the Supreme Court
denied the petition.
[Appellant] filed a second pro se PCRA petition as well
as a Brief In Support of Petition For Relief Under the
Post Conviction Relief Act (hereinafter, “Brief in
Support of Petition”) on March 2, 2018. Joseph L.
Coleman, Esquire was appointed to represent
[appellant] on March 20, 2018. On June 4, 2018,
Mr. Coleman filed a motion to withdraw as counsel
and a Finley letter stating that there was no merit to
[appellant’s] claims for collateral relief. On June 15,
2018, the [PCRA c]ourt issued notice, pursuant to
Pa.R.Crim.P. 907 (“907 Notice”) of its intention to
dismiss [appellant’s] petition without a hearing.
[Appellant] submitted a response to the [PCRA
c]ourt’s 907 Notice (“907 Response”) on August 28,
2018. On September 28, 2018, the [PCRA c]ourt
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dismissed [appellant’s] PCRA petition and granted
Mr. Coleman’s motion to withdraw his appearance.
[Appellant] has now appealed the [PCRA c]ourt’s
dismissal of his PCRA petition . . . .
PCRA court opinion, 12/27/18 at 1-2. The PCRA court ordered appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely complied. The PCRA court subsequently
filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Was trial defense counsel ineffective in failing to
demurrer and/or request a directed verdict of
acquittal in relation to the charges of criminal
conspiracy to commit robbery; robbery; and criminal
conspiracy to commit aggravated assault?1
Appellant’s brief at vi.2
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We review the appeal
1 We note that pursuant to Pa.R.Crim.P. 606, the term “demurrer” for
challenges to the sufficiency of the evidence is now referred to as a motion for
judgment of acquittal. See Pa.R.Crim.P. 606 (A)(1) and Comment. Similarly,
“[a] motion for directed verdict is the same as a motion for judgment of
acquittal.” Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa.Super.
2016). Therefore, we shall address appellant’s claim in terms of counsel’s
alleged ineffectiveness for failing to file a motion for judgment of acquittal.
2 We note that appellant does not contend that trial counsel was ineffective
for failing to file a motion for judgment of acquittal on the charge of
aggravated assault. (Appellant’s brief at 7-11.)
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“in the light most favorable to the prevailing party at the PCRA level[,]” and
“[o]ur review is limited to the findings of the PCRA court and the evidence of
record.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)
(en banc). “The PCRA court’s findings will not be disturbed unless there is
no support for the findings in the certified record.” Commonwealth v.
Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted). “This [c]ourt
grants great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a contrary
holding.” Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002)
(citation omitted).
When presented with a claim of ineffective assistance of counsel, this
court has held:
[t]o be eligible for relief based on a claim of ineffective
assistance of counsel, a PCRA petitioner must
demonstrate, by a preponderance of the evidence,
that (1) the underlying claim is of arguable merit;
(2) no reasonable basis existed for counsel’s action or
omission; and (3) there is a reasonable probability
that the result of the proceeding would have been
different absent such error.
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super. 2013) (citation
omitted), appeal denied, 74 A.3d 1030 (Pa. 2013). “The failure to satisfy
any one of the prongs requires rejection of the petitioner’s claim.”
Commonwealth v. Williams, 141 A.3d 440, 454 (Pa. 2016) (citation
omitted).
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This court has long held that trial counsel cannot be ineffective for failing
to present a motion for judgment of acquittal at the conclusion of the
prosecution’s case “when the prosecution has presented a prima facie case
and there was sufficient evidence to sustain a guilty verdict.”
Commonwealth v. Stewart, 450 A.2d 732, 735 (Pa.Super. 1982); see also
Pa.R.Crim.P. 606(A)(1) (stating, “[a] defendant may challenge the sufficiency
of the evidence to sustain a conviction of one or more of the offenses charged
in . . . a motion for judgment of acquittal at the close of the Commonwealth’s
case-in-chief.”). “The test for ruling upon a motion for judgment of acquittal
is whether ‘the prosecution’s evidence, and all inferences arising therefrom,
considered in the light most favorable to the prosecution are insufficient to
prove beyond a reasonable doubt that the accused is guilty of the crimes
charged.’” Stewart, 450 A.2d at 735, citing Commonwealth v. Finley, 383
A.2d 1259, 1260 (Pa. 1978); see also Sunealitis, 153 A.3d at 420 (stating,
“[a] motion for judgment of acquittal challenges the sufficiency of the
evidence to sustain a conviction on a particular charge, and is granted only in
cases in which the Commonwealth has failed to carry its burden regarding that
charge.”).
Here, appellant argues that trial counsel was ineffective for failing to file
a motion for judgment of acquittal on the charges of robbery, conspiracy to
commit robbery, and conspiracy to commit aggravated assault. (Appellant’s
brief at 1-13.) In so arguing, appellant asserts an underlying challenge to the
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sufficiency of the evidence to support each of the before-mentioned crimes.
(Id. at 1.)
After careful review, we find that the Honorable Glenn B. Bronson in his
Rule 1925(a) opinion, ably and comprehensively disposes of appellant’s
ineffectiveness claim by analyzing the sufficiency of the evidence to support
the convictions of robbery, conspiracy to commit robbery, and conspiracy to
commit aggravated assault with appropriate reference to the record and
without error of law. (See PCRA court opinion, 12/27/18 at 5-9.) We adopt
this portion of the opinion as our own.
The PCRA court concluded that in viewing the Commonwealth’s evidence
admitted at the conclusion of its case, and all inferences arising therefrom,
considered in the light most favorable to the Commonwealth, there was
sufficient evidence to sustain a guilty verdict and that the Commonwealth
presented its prima facie case on the aforementioned charges. This
conclusion is supported by the record and free of legal error. Specifically, the
record reveals that there was sufficient evidence to support the robbery
conviction in that appellant demanded money from the victim; upon refusal,
appellant ordered the co-defendant to shoot the victim; the victim, while
attempting to flee, was shot by the co-defendant; and as a result of the
gunshot wounds, the victim was paralyzed from the waist down with complete
spinal injury. (Id. at 7-8.) The record further supports that appellant and
co-defendant committed numerous overt acts in furtherance of their
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agreement to rob and assault the victim including evidence that appellant and
co-defendant approached the victim together; appellant demanded money
from the victim; appellant ordered co-defendant to shoot the victim; and the
co-defendant shot the victim. (Id. at 8-9.)
As the underlying claim of insufficient evidence to support the charges
of robbery, conspiracy to commit robbery, and conspiracy to commit
aggravated assault is without arguable merit, appellant’s collateral claim that
trial counsel was ineffective for failing to motion for judgment of acquittal fails.
Therefore, the PCRA court did not err in dismissing appellant’s PCRA petition.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/19
3 We note appellant’s boilerplate allegations that “[t]here is no reasonable
strategic basis designed to effectuate [appellant’s] interest by defense
counsel’s failure to challenge the sufficiency of evidence” and “[appellant] was
prejudiced by defense counsel’s inaction.” (Appellant’s brief at 12.) These
allegations fail to satisfy the second and third prongs of an ineffectiveness
claim. See Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011) (stating,
“We stress that boilerplate allegations and bald assertions of no reasonable
basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove
that counsel was ineffective.”).
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..
Circulated 08/22/2019 10:00 AM
IN THE COURT OF.COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA ·
CRIMINA� TRIAL DIVISION
CP-5 l-CR-0002930-2009
v.
ALI GALLOWAY
OPINION
BRONSON, J. December 27, 2018
On May 11, 2010, defendant Ali Galloway was convicted ofrobbery"(l8 Pa.C.S. §
370l(a)(l)(ii)),_aggravated assault (18 Pa.C.S. § 2702(a)), and criminal conspiracy to commit
. . .
both aggravated assault and robbery (18 Pa.C.S. § 903(a)). On June 22, 2010, the Court imposed
consecutive terms of 5 to 10 years for robbery, 5 to l O years for aggravated assault, and 5 to l O
years for criminal conspiracy, for an aggregate sentence of 15 to 30 years incarceration.
On October 7, 2011, the Superior Court affirmed defendant's judgment of sentence.
Defendant then filed a prose petition under the Post Conviction Relief Act ("PCRA") on August
•.
16, 2013. On February 28, 2014, Joseph Schultz, Esquire was appointed to represent defendant.
· On November 9, 2015, pursuant to Commonwealth v. Finley, 550 A.2d ·213 (Pa. Super .. 1988),
Mr. Schultz filed a motion to withdraw as counsel and a letter stating that defendant's petition
was untimely ("Finley letter"). On "November 10, 2015, the Court issued notice, pursuant to
Pa.R.Crim.P. 907 ("907 Notice") of its intention to dismiss defendant's·petitio� without a
hearing. Defendant submitted a response to the Court's 907 Notice ("907 Response") on
November 29;2015, claiming that he had requested app�Bate counsel to file a petition for
allowance of appeal in the Pennsylvania Supreme Court. Thereafter, Mr. Schultz filed an
,.. - - ·-. -- -- - -- -- . '
CP-51-CR-0002930-2009 Comm. v. Galloway, Ali .
Opinion '
1
111111111111111
8207175191
amended PCRA petition alleging that appellate counsel was ineffective for failing to petition for
allowance of appeal. Following an evidentiary hearing on the issue, on July 1, 2016, the Court·
reinstated defendant's right to file a petition for allowance of appeal. Thereafter, def�ndant filed
a petition for allowance of appeal, and, on January 31, 2017, the Supreme Court denied the
petition.
. .
Defendant filed a second pro se PCRA petition as· well as a Brief In Support of Petition
For Relief Under the Post Conviction Relief Act (hereinafter, "Brief in Support of Petition") on
March 2, 2018. Joseph L. Coleman, Esquire was appointed to represent defendant on March 20,
2018. On June 4, 2018; Mr. Coleman filed a motion to withdraw as counsel and a Finley letter
stating that there was no merit to defendant's claims for collateral relief. On June 15, 2018, the
Court issued notice, pursuant to Pa.R.Crim.P. 907 ("907 Notice") of its intention to dismiss
defendant's petition without a hearing. Defendant submitted a response to the Court's 907
Notice ("907 Response") on August 28, 2018. On September 28, 2018, the Court dismissed
. .
'defendant's PCRA petition and granted Mr. Coleman's motion to withdraw his appearance.
Defendant has now appealed the Court's dismissal of his PCRA petition on the grounds
that: 1) the evidence was legally insufficient to sustain his convictions for robbery and
.. .
conspiracy; and 2) trial counsel" was ineffective for failing to request a directed verdict of
acquittal for the charges of robbery and conspiracy. Statement of Errors Complained of on
Appeal ("State�ent of Errors") at� 9(�)-(b): For the reasons set forth below, defendant's
claims are either withoutmerit or waived; and the'PCRA Court's order dismissing his PCRA ·
petition should be affirmed.
2
I. FACTUALBACKGROUND
The factual background of this matter is set forth in the Court's original Rule 1925(a)
opinion filed in defendant's direct appeal as follows:
At trial, the Commonwealth presented the testimony ofJohn Borschell, Jr., John
Borschell, Sr., Philadelphia Police Officer Michael Smith, Philadelphia Police
detectives William Urban, Christopher Casee, Robert Killman, and John
Harrigan. Defendant presented the testimony of Leslie Galloway, Demetrius .
Boswell, and Nyem Walker Pittman. Defendant also presentedthe testimony of
Stephanie Galloway, Khalil Williams, and Ashley Alexander by way of
stipulation. Viewed in the light most favorable to the Commonwealth as verdict
winner, the evidence established the following.
Just before nine o'clock on thenight of September 14, 2008, John Borschell, Jr.
left his house in Philadelphia and got on his scooter, to go to a comer store to buy
some milk, bread, and cigarettes for his mother. N.T. 05/04/2010 at 45. After
making his purchases and exiting the store, Mr. Borschell lit up a cigarette; got on
his scooter, and began driving toward his house. N.T. 05/04/2010 at 46. While
driving on Unity Street, Mr. Borschell saw defendant Ali Galloway and
codefendant Craig Timbers. N.T. 05/04/2010 at 46-48. AsMr. Borschell passed
defendant and Timbers, one of them asked him ifhe had an extra cigarette. N.T.
05/04/2010 at 49. Mr. Borschell stopped and offered the remnants of a cigarette
he had smoked earlier because he did not want.to open the pack that he had just
bought for his mother .. N.T. 05/04/2010 at 49. ·
Defendant began to "freak out" at Mr. Borschell and both defendant and Timbers
began to demand Mr. Borschell give them his money. N.T. 05/04/2010 at 50-53.
Defendant then said, "Just shoot the pussy, just shoot the pussy. We're taking
your money, take everything." N.T. 05/04/2010 at 51-52.· Seeing Timbers begin
to take a gun out of his hooded sweatshirt, Borschell quickly began to drive away
on his scooter, but was shot in his back and then again in the backof his right leg.
N.T. 05/04/2010 at 52-55, 60. The second shot caused Borschell to lurch into the
air and then land on the street. N.T. 05/04/2010 at 55. Thinking he would be shot
again, Borschell tried to act like he was dead. N.T. 05/04/2010 at 55-56. After
seeing that defendant and Timbers had left, Mr. Borschell began yelling for help.
N.T. 05/04/2010 at 56. Some people eventually came to his assistance and called
9-1-1. N.T. 05/04/2010 at 5T
Mr. Borschell was taken to Temple.University Hospital where he stayed for three
days before being transferred to Moss Rehab where he stayed for two months.
N.T. 05/04/2010 at 59-61. The gunshot wound to his back left him paralyzed
. from the waist down. N.T. 05/04/2010 at 61-62. At the time of the trial, Borschell
was still in considerable pain and still took medication." N.T. 05/04/2010 at 62.
3
Trial Court Opinion, filed December 2, 2010, at pp. 2-3.
II. DISCUSSION
If court-appointed counsel for a PCRA petitioner determines that the issues the petitioner
raises for collateral review are meritless, and the PCRA court concurs, counsel may withdraw
and the petitioner may proceed prose, by privately retained counsel, or not at all.
Commonwealth v. Finley, 550 A.2d 213, 218 (Pa. Super. 1988). To be pemiitted to withdraw,
petitioner's counsel must file a no-merit letter, or "Finley letter," detailing the nature and extent
of counsel's review and listing each issue the petitioner wished to raise, with counsel's
explanation as to why the issues are meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 n.l
(Pa. 2009) (citing Finley, 550 A.2d at 215). After reviewing a Finley letter, the PCRA court is
required to independently review the record to evaluate the petitioner's claims. Id. A PCRA
petition may be dismissed without a hearing if the Court determines that there are no claims of
arguable merit and no purpose would be served by further proceedings. Commonwealth v.
Ligons, 971 A.2d 1125, 1143 (Pa. 2009); see Pa.R.Crim.P: 907(1).
In his Finley letter, Mr. Coleman stated his opinion that defendant's claims had no
.arguable merit. After an independent review of the record, the Court agrees with Mr. Coleman. ·
Each of defendant's PCRA appellate claims is considered below.
A. Sufficiency of the Evidence
Defendant first claims that "(t]he evidence is insufficient to establish, beyond a
reasonable doubt, the charges of criminal conspiracy to commit robbery; robbery; and criminal
conspiracy to commit aggravated assault." Statement of Errors at 19(a). Because this claim
could have, butwas not, raised on direct appeal, it is waived. 42 Pa.C.S. § 9544(b) ("an issue is
4
waived if the petitioner could have raised it but failed to do so before trial, at trial, [or] on
appeal"); see Commonwealth v. Lambert, 797. A.2d 232, 240 (Pa: 2001).
B. Ineffective Assistance of Counsel
Defendant next claims that "[t]rial defense counsel was ineffective in failing to demurrer
[sic] and/or request a directed verdict of acquittal in relation to the charges of criminal
conspiracy to commit robbery; robbery; and criminal conspiracy to commit aggravated assault."
Statement of Errors at 19(b). This claim is without merit.
. Under Pennsylvania law, counsel is presumed to be effective and the burden to prove
otherwise lies with the petitioner. Commonwealth v, Reid, 99 A.3d 427, 435 (Pa. 2014) (citing
Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002)). To obtain collateral relief based on the
ineffective assistance of counsel, a petitioner must show that counsel's representation fell below.
accepted standards of advocacy and that as a result thereof, the petitioner was prejudiced.
Strickland v. Washington, 466 U.S. 668, 694 (1984). In Pennsylvania, 'the. Strickland standard is
interpreted as requiring proof that: (1) the claim underlying the ineffectiveness claim had
arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) the ineffectiveness of
counsel caused the petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009);
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). To satisfy the third prong of the test,
the petitioner must prove that, but for counsel's error, there is a reasonable probability that the
outcome of the proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067,
1084 (Pa. 2006) (citing Strickland, 466 U.S. at 694). I(the PCRA court determines that any one
of the three prongs cannot be met, then the court. need not hold an evidentiary hearing as such a
hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.), app.
· denied, 956 A.2d 433 (Pa. 2008).
5·
Here, defendant's sole claim of ineffective assistance of counsel is premised upon trial
counsel's failure to move for a judgment of acquittal on the conspiracy charge and the
substantive charge of robbery. 1 Defendant does not contend that the evidence was insufficient
on the substantive aggravated assault charge, and so does notfault trial counsel for failing to
challenge the sufficiency of the evidence for that offense. Statement of Errors at 1 9(b ); see Brief
in Support of Petition at pp. 7-8. Rather, he argues that a prior. inconsistent statement of the
victim, John Borschell, Jr., refutes the evidence of conspiracy and robbery and renders the
evidence legally insufficient for those charges. Brief in Support of Petition at pp. 3-7.
To prevail on his claim, defendant must demonstrate a reasonable probability that the trial
court would have granted a motion for judgment of acquittal on the conspiracy and robbery
charges had trial coun�·el made such a.motion. See Commonwealth v. Hanible; 30 A.3d 426,
442-443 (Pa. 2011). The standard that would have governed the Court in deciding such a motion
is as follows:
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.
'Defendant claims that counsel failed to file a "demurrer" or request a "directed verdict." Statement of Errors at ,r
9(b). The Rules of Criminal Procedure state that challenges to the sufficiency of the evidence are now properly
brought through a "motion for a judgment of acquittal." Pa.R.Crim.P. 606 and Comment thereto.
6
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super.), app. denied, 95 A.3d 275 (Pa.
2014) ( citation omitted). The evidence presented at trial in 'support of the challenged convictions
is first analyzed below. The Court then addresses defendant's specific contention regarding the
· victim's prior inconsistent statement.
Robbery.
"A person is guilty of robbery if, in the course of committing a theft, he: ... inflicts
serious bodily injury upon another; [or] threatens another with or intentionally puts him in fear of
immediate serious bodily injury." 18 Pa.C.S. § 3701(a)(l)(i)(ii). "An act shall be deemed 'in the
course of committing a theft' if it occurs in an attempt to commit theft or in flight after the
attempt or commission." 18 Pa.C.S. § 3701(a)(2). Theft is the urilawful taking of property of
another with intent to deprive him thereof. 18 Pa.C.S. § 3921(a). "Serious bodily injury" is
defined as "[b ]odily 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." Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super.), app. denied, 78 A.3d 1089
(Pa. 2013) ( quoting 18 Pa.C.S. § 2301 ). in addition, it is well-established that any member of a
. . . .
conspiracy "is liable for the actions of the others if those actions were in furtherance of the
common criminal design." Commonwealth v. King, 990 A.2d 1172, 1178 (Pa. Super. 2010),
app. denied, 890 A.2d 1057 (Pa. 2012). Similarly, a defendant is criminally 'responsible for the
. . .
conduct of another as an accomplice if the defendant "(1) intended to aid or promote the
substantive offense; and (2) actively participated in that offense by soliciting, aiding, or agreeing
. . . .
to aid the principal." Commonwealth v. Collins, 957 A.2d 237, 263 (Pa. 2008)(citation omitted).
Here, the evidence was clearly sufficient to establish that defendant committed a robbery.
Borschell testified that defendant and his co-defendant, Timbers, approached Borschell and
7
asked him f�r a cigarette. N.T. 5/4/2010 at 47, 49-50. After Borschell offered them the cigarette
he was smoking, defendant suddenly said: "You know what? Fuck that. Just give us your money.
Give us all your money." N .T. 5/4/2010 at 51. After Borschell said that he would not give up
his money, defendant toldTimbers, "Youknow what? Just shoot the pussy. Just shoot·the pussy.
We're taking your money, take everything." N.T. 5/4/2�10 at 51. According to Borschell, when
he then turned and tried to flee on his scooter, Timbers shot him in the back, paralyzing him.
N.T. 5/4/2010 at 51-55.
Accordingly, Borschell's testimony established that defendant, accompanied by Timbers,
demanded money from Borschell, and when Borschell refused to comply, defendant ordered his
cohort to shoot Borschell. In addition, the Commonwealth presented medical records, by
stipulation, which established that the gunshots fired at Borschell in the attempt to steal his
money caused Borschell to become "paraplegic with complete spinal injury." N.T. 5/6/2010 at
. .
143-44. Finally, Borschell consistently identified defendant as one of his assailants, identifying
him from a photo array less than a month after the incident, N.T. 5/4/2010 at 79-80, and again in
court during the trial, N.T. 5/4/2010 at 63. All of this was ample evidence from which a
reasonable juror could conclude that defendant caused Borschell to sustain serious bodily injury
in the course of committing a theft, and that therefore, he was· guilty of robbery.
· Conspiracy
To sustain a conviction for conspiracy, the Commonwealth must prove:
(1) that the defendant intended to commit or aid in the commission ofa criminal
act; (2) that the defendant entered into an agreement with another, i.e., the co-
conspirator, to engage in a "crime; and (3) that the defendant or one or more of the
other co-conspirators committed an overt act in furtherance of the· agreed upon
cnme.
g·
Commonwealth v. Little, 879 A.2d 293, 298 (Pa. Super.), app. denied, 890 A.2d 1057 (Pa. 2005);
see 18 Pa.C.S. § 903(a). Because in most_ conspiracy cases there is no direct evidence of either
the defendant's criminal intent or of the conspiratorial agreement, "the defendant's intent as _well
as the agreement is almost always proven through circumstantial evidence, such as by 'the
r_elations, conduct or circumstances of the parties or overt acts on the part of the co-
conspirators."' Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (quoting
Commonwealth v. Spotz, 716 A.2d 580, 592 (Pa. 1998)).
Here, the evidence stated above clearly established that defendant acted in concert with
co-defendant Timbers to rob and assault Borschell. Both defendant and Timbers approached the
victim together. Defendant demanded money while Timbers stood by with a handgun, and at
defendant's direction, Ti�bers shot the victim when he failed to comply with defendant's
'demands. This was all compelling evidence that defendant and Timbers had agreed to act
together to jointly rob Borschell, and that they committed numerous overt acts in furtherance of
that agreement. For that reason, the jury's guilty verdict on the conspiracy charge was fully
supported by the evidence.
Victim's prior inconsistent statement
During the trial, the Commonwealth stipulated that the victim, Borschell, made a prior
statement to police after the incident in which he stated that it was Timbers, and not defendant,
who demanded-money from Borschell. N.T. 5/4/2010 at 74-75,106-12. Based upon that prior
inconsistent statement, defendant argues that the evidence established that Timbers robbed
Borschell entirely on his own. He claims that while defendant admittedly directed Timbers to
9
shoot.Borschell, the record is devoid of evidence that defendant had anything to do with the
robbery, or that he entered into a conspiratorial agreement with Timbers to commit any crime.2
Defendant's argument is without merit. At trial, Borschell testified that it was defendant
who demanded the money. N.T. 5/4/2010 at 51. When confronted with his prior statement to
police by defendant's lawyer on cross-examination, Borschell adhered to his testimony that · .
defendant demanded money before directing Timbers to shoot Borschell, N.T 5/4/2010 at 112.
The prior inconsistent statement was made by Borschell two days after the shooting from a
hospital bed. N.T. 5/4/2010 at 74-75. The jury was free to believe defendant's trial testimony
. notwithstanding the inconsistencies. Commonweaith V. Aritidor;,{ 84 A ..3d'736, 756 (Pa.··
Super.), app. denied, 95 A.3d 275 (Pa. 2014). While the statement was relevant to determine
Borschell's credibility, arguments· regarding credibility of witnesses go to the weight, and not the
sufficiency, of the evidence. See Commonwealth v. Wilson, 825 A.2d 710, 7i'3.:.14 (Pa. Super.
2003). Moreover, the statement did not, in any manner, undermine the compelling evidence,
detailed above, establishing that defendant and Timbers acted in concert to commit criminal
objectives and were, therefore, guilty of conspiracy. See pp. 8-9, supra.
Finally, defendant appears to claim that the jury was required to accept Borschell 's prior
statement as being correct because it was the subject of a Co�monwealth stipulation. See 907
Response at 7. However, the Commonwealth merely .stipulated that the statement was made;
there was no agreement that the prior statement was accurate or that it superseded Borschell' s
_trial testimony. N.T. 5/4/2010 at 75.
2
As stated above, defendant admits culpability for the assault: "It is admitted that petitioner 'commanded' that
Borschell be shot .... This 'COMMAND' by petitioner to 'shoot that pussy'·does make petitioner an accomplice to
the aggravated assault of Mr: Borschell." Brief in Support of Petition at p. 7 (emphasis in original).
10
Accordingly, the record establishes that there was ample evidence from which thejury
could conclude that defendant was guilty of conspiracy and robbery. For that reason, trial
couns�l could not have been ineffective for failing to file a motion challenging the sufficiency of
the evidence.
III. CONCLUSION
For the foregoing reasons, the Court's order dismissing defendant's PCRA Petition
should be affirmed.
BY THE COURT:
GLENN B. BRONSON, J.
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