Com. v. Holmes, Z.

J-S67024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZAKI JAMAR HOLMES :
:
Appellant : No. 822 MDA 2019
Appeal from the Judgment of Sentence Entered March 1, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000131-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 28, 2020
Appellant, Zaki Jamar Holmes, appeals from the March 1, 2018
Judgment of Sentence entered in the York County Court of Common Pleas
following his conviction of one count each of Robbery, Person Not to Possess
a Firearm, Terroristic Threats, Simple Assault – Physical Menace, and Theft by
Unlawful Taking.1 He challenges the sufficiency and weight of the evidence.
After careful review, we affirm.
We glean the following factual and procedural history from the trial
court’s Opinion and our de novo review of the record. Appellant was friends
with Elizabeth Smith’s children for over ten years. On the evening of October
23, 2016, he stopped by Ms. Smith’s house in York City for a short visit with
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3701(a)(1)(iii), 6105(a)(1), 2706(a)(1), 2701(a)(3) and
3921(a), respectively.
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her son. Approximately 15 minutes after leaving, Appellant returned to the
home with another man, each of whom had a hooded sweatshirt (“hoodie”)
tied tightly around his face. Ms. Smith, her two daughters, Croatia Coleman
and Tatijuana Coleman, and five of her grandchildren were in the living room
at the time. Pointing guns at the women, the men demanded their wallets
and purses. One of the men grabbed a cell phone from Croatia’s hands while
she was on a call. Ms. Smith refused to give the men her wallet, so Appellant
pointed the gun at the grandchildren and threatened to shoot them. She then
gave him her wallet, which contained $242 in cash, and the men ran out of
the house. Ms. Smith immediately called 911.
Although Appellant’s face had been hidden by the tied hoodie, Ms. Smith
recognized him by his voice, build, and sweatshirt. When police officers
arrived shortly after the robbery, she described the assailants to York City
Police Officer Chistopher Hustid and showed him a picture of Appellant from
Facebook. Croatia and Tatijuana refused to speak to Officer Hustid: they
would not tell him their names; Croatia refused to tell him the cell phone
number of the phone that was stolen from her hand; and they both refused
to discuss the robbery with him.
The Commonwealth arrested Appellant on November 1, 2016, and
charged him with the above crimes. At the preliminary hearing on January 4,
2017, Ms. Smith testified that Appellant wore a dark gray hoodie during the
robbery and the other man wore a black hoodie.
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A jury trial proceeded on January 3, 2018, at which Ms. Smith and
Officer Christopher Hustid testified. Ms. Smith testified that she has known
Appellant for between 10 to 15 years, and had recognized Appellant during
the robbery from his voice and sweatshirt because he had been at her house
approximately 10 to 15 minutes before the robbery. She also said that the
other man had on a gray hoodie while Appellant’s sweatshirt was black and
that Appellant did not have facial hair that day.
On cross-examination, when presented with her preliminary hearing
testimony, Ms. Smith corrected her trial testimony and said it was Appellant
in the dark gray hoodie and the other man in the black hoodie.2
Officer Hustid testified regarding his response to the incident. On cross-
examination, he stated that Ms. Smith told him on the day of the incident that
Appellant had a thin moustache.
The jury found Appellant guilty of all charges. The court deferred
sentencing pending a pre-sentence investigation (“PSI”) report. Following
consideration of the PSI Report and argument of counsel, the court sentenced
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2 Croatia Coleman appeared at trial as an uncooperative witness pursuant to
the Commonwealth’s subpoena. She testified she was not really paying
attention during the robbery because she was on the phone until one of the
two men snatched it from her. She also stated that she did notice one of the
men threatening to shoot her children. She provided no testimony regarding
the identity of the robbers except to say they were two males. She stated she
had known Appellant for approximately 14 years, since she was a child, and
had seen him just a month before trial in a passing car and “synced” with him.
N.T. Trial, 1/3/18, at 85-89.
The Commonwealth had also issued a subpoena to Tatijuana to testify at trial
but she did not appear. Id. at 107.
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Appellant to a standard range sentence of eight to sixteen years’ incarceration.
Appellant filed a Post-Sentence Motion, which the court denied.
Appellant timely appealed. However, this Court ultimately quashed his
appeal because of his failure to file a docketing statement in compliance with
Pa.R.A.P. 3517. Appellant then filed a Petition for Post-Conviction Collateral
Relief, and on April 22, 2019, the trial court reinstated his appeal rights nunc
pro tunc.
Appellant filed a counseled Notice of Appeal on May 17, 2019. On May
21, 2019, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
Statement within 21 days. Appellant did not file a Rule 1925(b) Statement.
The trial court filed a Pa.R.A.P. 1925(a) Opinion, observing that Appellant’s
counsel provided per se ineffective assistance by failing to file the ordered
Rule 1925(b) Statement. This Court agreed and on December 26, 2019,
remanded the case back to the trial court for counsel to file a Rule 1925(b)
Statement nunc pro tunc and for the trial court to file a responsive Rule
1925(a) Opinion.
On January 23, 2020, the trial court appointed new appellate counsel.
After receiving an extension, Appellant filed his Rule 1925(b) Statement on
April 7, 2020, challenging the sufficiency and weight of the evidence
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supporting his identity as one of the assailants. The trial court filed a Rule
1925(a) Opinion on May 18, 2020.3
Appellant raises the following issues for our review:
1. Whether there existed sufficient evidence that the Appellant
was the individual that committed the Robbery and related
offenses as only the sound of his voice was used to describe him
and conflicting descriptions of the sole identifying witness as to
his clothing and facial hair existed?
2. Whether the verdict was against the weight of the evidence as
only the sound of the Appellant’s voice was used to describe him
and conflicting descriptions of the sole identifying witness as to
his clothing and facial hair existed?
Appellant’s Br. at 4.
Sufficiency of the Evidence
In his first issue, Appellant does not challenge the evidence that
supports the statutory elements of his crimes. Rather, he challenges only the
evidence supporting his identification as one of the assailants. See Appellant’s
Br. at 13 (stating “[h]erein, we have disparity between facial hair of the
accomplice and the hoodie being worn.” (no citation to record provided)).
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We
review claims regarding the sufficiency of the evidence by considering
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3 Both Appellant and the Commonwealth requested and received extensions
to file their respective appellate Briefs. The Commonwealth ultimately filed a
Brief on September 9, 2020.
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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.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)
(internal quotation marks and citation omitted).
“Further a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Id. “In conducting this review, the appellate court may not weigh
the evidence and substitute its judgment for the fact-finder.” Id.With respect to the issue of identification as the basis for challenges to
the sufficiency of the evidence supporting a conviction,
our courts have held that evidence of identification needn't be
positive and certain in order to convict, although any
indefiniteness and uncertainty in the identification testimony goes
to its weight. Similarly, although identification based solely on
common items of clothing and general physical characteristics is
insufficient to support a conviction, such evidence may be
considered to establish identity along with other circumstances
and the proffered identification testimony[.]
Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 1983) (internal
punctuation and citations omitted).
In addition, a victim’s identification of an assailant within minutes of the
crime is a significant factor to be considered as part of the totality of the
evidence. Commonwealth v. Orr, 38 A.3d 868, 871, 874 (Pa. Super. 2011).
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In addressing Appellant’s sufficiency challenge, the trial court observed
that the jury found Ms. Smith’s testimony credible. Trial Ct. Op., 5/18/20, at
at 9-10. The court specifically noted that (1) Ms. Smith had known Appellant
for ten or fifteen years because he was a friend of her son; (2) Appellant had
been at her house a mere fifteen minutes before the robbery occurred; and
(3) she immediately recognized Appellant’s voice when he spoke during the
robbery.4 Id. at 9. In light of this testimony and other evidence, the court
concluded that the Commonwealth presented sufficient evidence for the jury
to conclude that Appellant was guilty of the crimes charged. Trial Ct. Op at
10-13.
Our de novo review of the record, viewed in the light most favorable to
the Commonwealth, supports the court’s conclusion. At no time did Ms. Smith
exhibit any uncertainty in identifying Appellant as one of the robbers. Ms.
Smith had known Appellant for at least 10 years, and Appellant had been
visiting her son in her house just minutes before the robbery wearing the same
sweatshirt he had on during the robbery. During the robbery, she recognized
Appellant’s voice and physical build. See N.T., 1/3/18, at 90-103.
Immediately after the robbery, Ms. Smith identified Appellant to Officer Hustid
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4 The trial court also addressed the elements of each crime and the evidence
presented to conclude that the Commonwealth presented sufficient evidence
to support the jury’s verdicts. Appellant has not addressed the elements of
the crimes; accordingly, any challenges he may have raised for appellate
review with respect to the evidence supporting the specific elements of each
crime are waived. See Pa.R.A.P. 302(a).
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by describing Appellant physically, stating she recognized Appellant’s voice,
and showing Officer Hustid a picture of Appellant posted on Facebook. N.T.,
1/3/18, at 114-15. Moreover, Ms. Smith identified Appellant without
hesitation at both the preliminary hearing and the trial as one of the assailants
after reiterating she had immediately recognized his voice. When presented
during cross-examination with her preliminary hearing testimony, she
acknowledged that she had misspoken regarding Appellant’s clothing during
her direct testimony and stated that it was Appellant wearing the dark gray
hoodie and the other man who wore the black hoodie. See id. at 105-06.
Appellant attempts to challenge the sufficiency of the evidence by
highlighting the inconsistency in Ms. Smith’s testimony about the clothing
worn by the assailants, and her trial testimony, contradicted by Officer Hustid,
that on the day of the crime, Appellant had no facial hair. This argument
minimizes the undisputed fact of Ms. Smith’s longstanding acquaintance with
Appellant and her unwavering recognition of his voice. Appellant’s emphasis
on inconsistent testimony fails to convince this Court that the jury’s verdicts
were not supported by sufficient evidence. See, e.g., Commonwealth v.
Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (denying sufficiency challenge
where it was based on the fact that two witnesses displayed uncertainty at
trial as to the appellant’s identity after having made previous positive
identifications).
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Moreover, Appellant’s argument raises a challenge to the weight of the
evidence, which we address below. Based on the foregoing, Appellant’s
challenge to the sufficiency of the evidence warrants no relief.
Weight of the Evidence
Appellant next contends the verdict was against the weight of the
evidence, relying on the same argument he presented in his sufficiency
challenge, in addition to a bald averment that the evidence showed “variations
and questions of who the actual possessor of the firearm and robbery assailant
to have a true rendering of the facts supporting a verdict.” Appellant’s Br. at
15 (verbatim; no citation to record provided).5 No relief is due.
When considering challenges to the weight of the evidence, courts apply
the following principles. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).
Resolving contradictory testimony and questions of credibility are matters for
the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.
Super. 2000). It is well-settled that we cannot substitute our judgment for
that of the trier of fact. Talbert, supra at 546.
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5 We note that nowhere else in his Brief did Appellant mention any variation
in testimony regarding who had firearms. Our review of the record reveals
none; in fact, Ms. Smith testified that both assailants had guns. See N.T. at
94.
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Further, appellate review of a weight claim is a review of the trial court’s
exercise of discretion in denying the appellant’s post sentence motion
requesting a new trial based on the weight of the evidence. Id. at 545-46.
This Court does not review the underlying question of whether the verdict is
against the weight of the evidence. Id. “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 a trial court’s determination that the verdict is [or
is not] against the weight of the evidence.” Id. at 546 (citation omitted). “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.” Id.
(citation omitted).
Additionally, “[i]n order for a defendant to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague[,] and
uncertain that the verdict shocks the conscience of the court.” Id. (internal
quotation marks and citation omitted). As our Supreme Court has made clear,
reversal is only appropriate “where the facts and inferences disclose a palpable
abuse of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.
2014) (citations and emphasis omitted).
Appellant is asking this Court to reweigh the record evidence and resolve
inconsistencies in his favor. Because this Court is not the fact-finder, we
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cannot and will not do so. Hopkins, supra. In addition, the verdict does not
shock the conscience of this Court and we discern no abuse of discretion in
the trial court’s denial of Appellant’s Post Sentence Motion. Accordingly, this
claim fails.
Because we find no merit in Appellant’s sufficiency and weight
challenges, we affirm the Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/28/2020
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