HomeMy WebLinkAboutCP-21-CR-1521-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) ROBBERY
: (2) ROBBERY
: (3) THEFT BY UNLAWFUL TAK.
NATHAN HOWARD : (4) SIMPLE ASSAULT
DENEAU :
OTN: K778114-1 : CP-21-CR-1521-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 10, 2010.
In this criminal case in which Defendant was found guilty following a jury
trial of robbery (threatening the victim with, or putting the victim in fear of,
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immediate serious bodily injury), a felony of the first degree, inter alia, and
received a standard range sentence of not less than four years nor more than eight
3
years in a state correctional institution. Defendant has filed an appeal from the
4
judgment of sentence to the Pennsylvania Superior Court.
The bases for the appeal have been set forth in Defendant’s statement of
errors complained of on appeal as follows:
1. The admission by the Court of hearsay evidence by David
J. Cleope was improperly admitted into evidence, contradicted by
later testimony of the declarant, and was prejudicial to the Defendant.
2. The evidence presented by the Commonwealth was
5
insufficient to sustain a conviction of Robbery.
1
Verdict, January 26, 2010.
2
Defendant was also found guilty of robbery as a felony of the second degree (threatening the
victim with, or intentionally putting the victim in fear of, immediate bodily injury), theft by
unlawful taking or disposition, a misdemeanor of the first degree, and simple assault, a
misdemeanor of the second degree. Verdict, January 26, 2010. Counsel were in agreement that
these offenses merged for purposes of sentencing with the more serious form of robbery. N.T. 2,
Sentencing Proceeding, March 2, 2010.
3
Order of Court, March 2, 2010.
4
Defendant’s Notice of Appeal, filed March 31, 2010.
5
Defendant’s Concise Statement of the Errors Complained of on Appeal, filed April 22, 2010.
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, a court
is to view the evidence in the light most favorable to the Commonwealth as verdict
6
winner, drawing all proper inferences favorable to the Commonwealth and
bearing in mind that a trier of fact is free to believe all, part or none of the
7
evidence presented. Viewed in this light, the evidence at trial in this case may be
summarized as follows:
Shortly before 3:00 a.m. on Monday, April 20, 2009, Defendant and his
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girlfriend arrived by her car from Chambersburg, Franklin County, Pennsylvania,
at the Shippensburg Borough, Cumberland County, Pennsylvania, residence of
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David J. Cleope. The girlfriend was annoyed with Defendant for having no
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money with him, and they were arguing about this situation when Defendant
announced that he would go to an all-the-time-teller machine to withdraw
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money. He left the residence.
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At about 3:00 a.m., at a Sheetz convenience store located on the northwest
151617
corner of the intersection of East King Street and North Queen Street in the
6
Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290.
7
Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582, 585.
8
N.T. 79-81. Trial, January 25-26, 2010 (hereinafter N.T. __).
9
N.T. 59, 67, 79.
10
N.T. 80, 82.
11
N.T. 82.
12
N.T. 82.
13
N.T. 83.
14
N.T. 10-11.
15
Commonwealth’s Ex. 4, Trial, January 25-26, 2010 (hereinafter Commonwealth’s Ex. __).
16
N.T. 30.
17
N.T. 55.
2
181920
Borough of Shippensburg, Cumberland County, Pennsylvania, a white man
wearing blue jeans, a white t-shirt, and gray, “shirt-like” material covering his
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face, concealing what appeared to be a gun under his shirt, and having an
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armband on his left arm, confronted a female sales clerk and demanded all of the
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twenty dollar bills in the cash register. She gave him $240 in twenty dollar
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bills, and the man departed the store.
Responding to a dispatch about the robbery shortly after 3:00 a.m.,
Shippensburg University Sergeant Scott Bradnick was flagged down by
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Defendant, whose attire included a gray shirt, white t-shirt, and blue jeans, a few
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blocks from the Sheetz store. Defendant appeared nervous. He told police he
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had seen a black or Puerto Rican man, wearing a white t-shirt and gray hoodie
323334
over his head, run out of the Sheetz store toward North Queen Street.
18
N.T. 50.
19
N.T. 11.
20
N.T. 12, 98.
21
N.T. 12, 15.
22
N.T. 11.
23
N.T. 99.
24
N.T. 11, 16.
25
N.T. 18; Commonwealth’s Ex. 1 (security camera DVD); Commonwealth’s Ex. 2 (transcript of
audio from security camera DVD).
26
N.T. 12.
27
Commonwealth’s Ex. 1 (security camera DVD).
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N.T. 48, 63. At this time, Defendant was also wearing a black leather coat. Id.
29
N.T. 46; 48; Commonwealth’s Ex. 4 (aerial map of borough).
30
N.T. 57.
31
N.T. 47.
32
N.T. 49.
33
N.T. 57, 61.
34
N.T. 49.
3
35
Defendant was not detained, and he returned to the aforesaid residence of his
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friend, about 20 or 30 minutes after having left it.
Upon entering the residence, Defendant rushed into the bathroom, slammed
the door in his girlfriend’s face, threw his shirt at her when he came out, told her
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not to worry about it when she questioned his behavior, and changed his shoes.
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He also gave Mr. Cleope $60 in the form of three twenty dollar bills.
Almost immediately thereafter, Defendant was subjected to further
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investigation by police. He claimed, falsely, that he had been in the immediate
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area of the Sheetz store to get tobacco from a friend at a nearby house, and gave
a different story as to which direction the supposed robber had been running when
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he saw him. His left arm revealed a distinctive tattoo below the elbow, where
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the robber had worn an armband.
When questioned by police, Defendant’s girlfriend identified the voice of
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the robber on the store’s surveillance video as that of Defendant, and confirmed
that the clothing worn by the robber matched that which Defendant had been
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wearing. In addition, Defendant’s account of a black or Puerto Rican man fleeing
35
N.T. 59.
36
N.T. 59,
37
N.T. 85.
38
N.T. 75.
39
N.T. 85-86.
40
N.T. 51.
41
N.T. 75.
42
N.T. 60, 75.
43
N.T. 96-97; Commonwealth’s Ex. 4 (aerial map of borough).
44
N.T. 61.
45
N.T. 99.
46
N.T. 99.
47
N.T. 86.
48
N.T. 86.
4
from the Sheetz store down the streets of Shippensburg was not supported by the
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video of the robbery or the observations of other persons in the vicinity
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immediately after the incident. Finally, the course of travel by Defendant implicit
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in his version of events would not have included access to an ATM machine.
During the trial, an evidentiary issue arose as to whether the
Commonwealth would be permitted to ask Mr. Cleope what Defendant’s girlfriend
had said to Defendant prior to his departure from the residence regarding the
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availability of funds at an ATM machine. Specifically, the Commonwealth’s
offer of proof was as follows:
[PROSECUTOR]: If he would be allowed to testify, he would
testify to the fact that they [Defendant and his girlfriend] were fighting
about money, and . . . [the girlfriend] would say we don’t have any money
in the ATM, not offering to prove whether or not he had money in the
ATM, but to show that it was his intent not to go to the ATM, and he’s just
53
making something up.
* * * *
[PROSECUTOR]: If he is allowed to testify he would testify to
the fact that [the girlfriend] and the Defendant was fighting. The girlfriend
and boyfriend were fighting. Defendant says, I’m going to the ATM to get
money. Girlfriend says, you don’t have any money in there. Why are you
going into the ATM? And Defendant says, well, I’m going to do some sort
of blank envelope withdraw. That statement is not being offered to prove
whether or not he had money in that account, but to show that
[Defendant’s] intent was not to go to the ATM but rather to go rob the
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Sheetz. So it shows the Defendant’s state of mind.
* * * *
THE COURT: . . . Tell me again exactly . . . what your
question is, and then what this witness is going to say.
49
Commonwealth’s Ex. 1 (security camera DVD); N.T. 58.
50
N.T. 32 (responding police officer); N.T. 55-57 (responding police officer); N.T. 42 (civilian
encountered by Defendant on East King Street).
51
N.T. 101-02.
52
N.T. 68.
53
N.T. 68-69 (sidebar).
54
N.T. 69 (sidebar).
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[PROSECUTOR]: I believe my question was what did [the
girlfriend] say about the Defendant’s ATM account? . . . About whether or
not he had any money in his account.
THE COURT: And the answer would be what?
[PROSECUTOR]: . . . The answer would be that she stated, hey,
you don’t have any money in your account. What are you talking about?
THE COURT: And his answer was what?
[PROSECUTOR]: And the Defendant’s answer after that would
be, I’m going to make a blank envelope withdrawal and incur an additional
fee, but I’ll be able to get money. . . . Defendant admits he doesn’t have
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money because he’s going to do a blank envelope withdrawal.
Defendant’s counsel objected to the proffered testimony as to the alleged
statement of Defendant’s girlfriend to him that his account contained no funds, on
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the ground that it represented inadmissible hearsay, arguing that the relevance of
any admission implicit in Defendant’s response was diminished by the fact that
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“[p]eople lie to their girlfriends about money all of the time.” The court
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overruled Defendant’s objection, but offered Defendant’s counsel the option of a
cautionary instruction to the jury that nothing allegedly said by the girlfriend could
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be considered for the truth of the statement. Defendant’s counsel requested that
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such an instruction be given.
Unfortunately for the Commonwealth, the testimony given by Mr. Cleope
in response to the prosecutor’s question was vague and not in conformity with the
offer of proof:
[PROSECUTOR]: Mr. Cleope, you are in the apartment. It is
roughly 3:00 in the morning?
[MR. CLEOPE]: Correct.
[PROSECUTOR]: Donata, which is the Defendant’s girlfriend?
[MR. CLEOPE]: Yes.
55
N.T. 70-71 (sidebar).
56
N.T. 68.
57
N.T. 71.
58
N.T. 72.
59
N.T. 72.
60
N.T. 72.
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[PROSECUTOR]: They were fighting about money?
[MR. CLEOPE]: Yes.
[PROSECUTOR]: They don’t have any money?
[MR. CLEOPE]: No, not at the time. That is what they were
arguing over, not being able to have any money.
[PROSECUTOR]: The Defendant says, I’m going to go to the
ATM?
[MR. CLEOPE]: He said, yeah, I’ll get money, and we’ll go to
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the ATM—
* * * *
[MR. CLEOPE]: I can’t quote him, but it was in reference to
him going to the ATM and withdrawing some money because they didn’t
have any at the time.
[PROSECUTOR]: Okay. And then Donata’s reaction? What did
she say to that?
[MR. CLEOPE]: I believe—I mean she wanted him to, but I
don’t know if she—I don’t think she knew that he had any money in the
ATM.
[PROSECUTOR]: And how do you know that she didn’t think
he had any money in the ATM?
[MR. CLEOPE]: Because I believe he said that he didn’t have
anything in there before or they had already—I wish I had a written
statement to go there. I wish I did, because I don’t want to answer anything
incorrectly, but I believe that is what it was.
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[PROSECUTOR]: Okay.
Given the nature of the testimony actually received from Mr. Cleope on the
point at issue, Defendant’s counsel withdrew his request that a cautionary
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instruction be given to the jury regarding its use. Subsequent to this testimony,
Defendant’s girlfriend testified on behalf of the Commonwealth that she had not
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known whether Defendant had money in his account or not.
61
N.T. 73.
62
N.T. 74.
63
N.T. 74.
64
N.T. 83.
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Defendant did not present any witnesses or introduce any exhibits at trial.
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At his request, the jury was instructed that no adverse inference could be drawn
66
toward him from his failure to testify.
Following the jury’s verdict of guilty of robbery, inter alia, and sentence, as
indicated above, Defendant filed an appeal from the judgment of sentence on
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March 31, 2010, to the Superior Court.
DISCUSSION
Sufficiency of the evidence. On a challenge to the sufficiency of the
evidence in a criminal case, the proper test is “whether, viewing the evidence in
the light most favorable to the Commonwealth as verdict winner and drawing all
proper inferences favorable to the Commonwealth, the trier of fact could have
determined all the elements of the crime have been established beyond a
reasonable doubt.” Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d
1287, 1290, quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541,
543 (1995).
A challenge to the sufficiency of the evidence does not implicate a
weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856
A.2d 131, 135. The trier of fact is “free to believe all, part or none of the
evidence.” Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582,
585, quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256,
1257 (1986).
Circumstantial evidence, as well as direct evidence, can support a
prosecution. Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916 (2008).
Indeed, as Thoreau observed, “[s]ome circumstantial evidence is very strong, as
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when you find a trout in the milk.”
65
N.T. 109.
66
N.T. 122.
67
Defendant’s Notice of Appeal, filed March 31, 2010.
68
Thoreau, Journal (November 11, 1854).
8
Under Section 3701(a)(1)(ii) of the Crimes Code, “[a] person is guilty of
robbery if, in the course of committing a theft, he . . . threatens another with or
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intentionally puts him in fear of immediate serious bodily injury.”
In the present case, although the phrasing of Defendant’s error complained
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of on appeal with respect to sufficiency of the evidence is rather general, it is
presumed that Defendant is questioning its sufficiency in terms of proof that he
was the perpetrator of the robbery rather than proof that a robbery had occurred. In
this regard, it is believed that the evidence tending to show, inter alia, that (a)
Defendant had no money on his person shortly prior to the robbery, (b) at the time
of the robbery Defendant was in the immediate vicinity of the store robbed, (c) the
time of the robbery was 3:00 a.m. and its locus was in a small town, (d)
Defendant’s expressed purpose at the time was to obtain money in a form
consistent with a withdrawal from an ATM machine, (e) Defendant lacked access
to an ATM machine in the apparent course of his travel in search of money, (f) the
robber demanded and obtained money in the form of twenty dollar bills,
simulating the proceeds of an ATM machine withdrawal, (g) the clothing and
voice of the robber and Defendant matched, (h) the robber wore an armband
concealing an area of his arm where Defendant had a tattoo that would have
promoted his identification by a witness to the robbery, (i) Defendant fabricated a
story that another individual had committed the robbery and gave a false reason
for being present in the vicinity of the robbery at the time of its occurrence, (j)
Defendant was in possession of currency in the same denomination as that taken in
the robbery shortly after its occurrence, and (k) Defendant shed his shirt and
footwear shortly after the robbery, was more than sufficient to warrant a jury’s
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Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3701(a)(1)(ii).
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Whether a general challenge to the sufficiency of the evidence in a statement of errors
complained of on appeal is a sufficiently specific predicate for appellate review is beyond the
scope of this opinion. But see Commonwealth v. Lemon, 804 A.2d 34 (Pa. Super. 2002).
9
conclusion, beyond a reasonable doubt, that Defendant had been the perpetrator of
the robbery.
Admission of evidence. In general, “[t]he admission of evidence is a matter
vested within the sound discretion of the trial court, and such a decision [will] be
[deemed to be error] only upon a showing that the trial court abused its
discretion.” Commonwealth v. Weakley, 2009 WL 1033762 *5, 972 A.2d 1182,
1188 (Pa. Super. 2009). An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.” Id.
Hearsay, which is generally inadmissible subject to certain recognized
exceptions, is an out-of-court statement introduced for the truth of the statement.
Watson v. American Home Assur. Co., 454 Pa. Super. 293, 306, 685 A.2d 194, 200
(1996).
In addition, an error in the admission of evidence will not warrant a reversal
of a conviction in a criminal case where “(1) the error did not prejudice the
defendant or the prejudice was de minimis; or (2) the erroneously admitted
evidence was merely cumulative of other, untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that the error
could not have contributed to the verdict.” Commonwealth v. Stutler, 2009 PA
Super. 30, ¶23, 966 A.2d 594, 602.
In the present case, the purported statement of Defendant’s girlfriend to him
shortly before the robbery to the effect that his bank account would not support an
ATM withdrawal was not offered to prove the truth of the statement, but rather, in
conjunction with his purported reply that he would make a blank envelope
withdrawal, to show an item of knowledge on his part that might have led him to
select an alternative means of acquiring funds; in this regard, the evidence as
10
proffered was not within the scope of the definition of hearsay. Second, when the
testimony of the witness was actually received, it did not include the third-party
declaration and was so vague and equivocal on the subject that Defendant’s
counsel withdrew his request that a cautionary instruction be given to limit its
effect. Third, the Commonwealth further diminished any effect of the witness’
testimony on the subject by eliciting from the purported declarant the information
that she had not in fact known whether Defendant’s account would have supported
a withdrawal. Finally, as indicated above, the properly admitted and
uncontradicted evidence tending to prove that Defendant was the perpetrator of the
robbery charged in this case, although largely circumstantial, was extremely
strong.
Based upon the foregoing, it is believed (a) that Defendant’s hearsay
objection to the proffered testimony of Mr. Cleope was properly overruled, (b) that
any error with respect to this ruling was harmless, given the minimal degree of any
prejudice created by the testimony as it actually came in, subsequent evidence of
the Commonwealth tending to negate the likelihood that the proffered declaration
which the defense found objectionable would have been made, and the
overwhelming nature of properly admitted, uncontradicted evidence of
Defendant’s guilt, and (c) that Defendant’s withdrawal of his request for a
cautionary instruction as to the testimony received waived his right to relief in
connection with its admission inasmuch as such an instruction would have
prohibited the jury from utilizing any third-party out-of-court declaration which it
might have inferred from the testimony to conclude that Defendant’s account
would not have supported an ATM withdrawal.
For the foregoing reasons, it is believed that the evidence in this case was
sufficient to warrant a finding by the trier of fact that Defendant was the
perpetrator of the robbery in question, and that the court’s ruling on the objection
to testimony of David J. Cleope did not constitute reversible error. Accordingly, it
11
is believed that the judgment of sentence from which Defendant has appealed was
properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Brian O. Williams, Esq.
Assistant Public Defender
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