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HomeMy WebLinkAboutCP-21-CR-1433-2002 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. SALEEM IBN LITTLE NO. 2002-1433 CRIMINAL TERM IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., May , 2003 The defendant was convicted by a jury of one count of robbery 1 and one count of theft? On February 25, 2003, he was sentenced on the robbery charge to serve not less than five nor more than ten years in a state correctional institution.3 He has filed this timely appeal in which the only issue involves a challenge to the sufficiency of the evidence in connection with the robbery charge.4 Standard of Review. The standard of review in assessing a sufficiency of the evidence claim is well settled. The Superior Court recently articulated that standard as follows: "The standard we apply in reviewing the sufficiency of 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." Commonwealth v. Heberlig, 451 Pa.Super. 119,678 A.2d 794, 795 (Pa.Super. 1996) (citing Commonwealth v. Williams, 539 Pa. 1 He was charged with four counts of robbery as a principal and/or an accomplice in violation of 18 Pa. C.S.A. ~ 370 1 (a)(ii) and 18 Pa. C.S.A. ~ 306. By agreement of the parties only one consolidated count of robbery was submitted to the jury. 2 He was charged with three counts of theft as a principal and/or accomplice in violation of 18 Pa. C.S.A. ~ 3921(a) 18 Pa. C.S.A. ~ 306. By agreement of the parties, only one consolidated count of theft was submitted to the jury. 3 The parties agreed that the theft charge merged with the robbery charge for sentencing purposes. Therefore, no sentence was imposed that on count. 4 See "Concise Statement of Matters Complained of on Appeal." NO. 2002-1433 CRIMINAL TERM 61, 650 A.2d 420 (1994))). . . . 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. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (Pa.Super. 1995) (citations omitted). 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 trier 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. Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted). Commonwealth v. Martinez, 777 A.2d 1121, 1126 Pa.Super. (2001) quoting from Commonwealth v. Vetrini, 734 A.2d 404,406-407 Pa.Super. (1999). Applying the above standard to the case at bar, we are satisfied that the evidence was sufficient to sustain the verdict. 5 FACTUAL BACKGROUND We will summarize the evidence viewed in the light most favorable to the Commonwealth as the verdict winner. On the night of June 10, 2002, Jonathan Burdick, Antonio Borrerro, Justin Zepeda and Brandon Martin were walking in the Borough of Carlisle. It was nearing midnight as they entered the alley behind the Cumberland County Courthouse. They were confronted by a codefendant who asked to purchase marijuana.6 He then produced a silver hand gun and put it to the side of Burdick's head. He demanded all of their money. When it was clear that they had no money, he pistol- whipped Zepeda and ripped jewelry from the victims' necks. He then cocked his 5 Since no post sentence motion in arrest of judgment was filed, this is the first opportunity we have had to address the issue. 6 Since both of codefendants had previously entered guilty pleas, the defendant was tried alone. 2 NO. 2002-1433 CRIMINAL TERM gun and told them to run. Three of the victims identified the defendant as an active participant in the above events? According to their testimony, he provided backup assistance to his codefendant. They each described, in varying detail, how the defendant circled around behind them while brandishing a black handgun. Another codefendant, Jodi Doremus, testified at trial. According to her, she pulled her car over so that the defendant and codefendant could try to get drugs from the victims. When they returned, they both had guns in their waistbands and the codefendant had jewelry which he admitted taking from the victims. She described the codefendant's gun as silver and the defendant's gun as black. 8 No arrest was made on the night of the robbery. However, the next night a car matching the description given by the victims was spotted by a Carlisle police officer. The two male occupants slouched out of view when they saw the police car. Pursuant to a subsequent stop and search of the vehicle, two handguns were found, one black and the other silver. 9 When questioned by the police, defendant denied being with the codefendants on the night of the robbery. In fact, he provided the police with an alibi witness to confirm his whereabouts. He later changed his story, admitting that he was with the codefendants, but denying that he had a gun or participated in the robbery. At trial, his testimony was consistent with his second version of events. 7 Jonathan Burdick did not notice the defendant since he was, understandably, focusing his attention on the pistol pointed directly at his head. 8 Her testimony was corroborated by another passenger in the car. The other passenger was not charged. 9 No challenge was made to the propriety of stop and search of the car. 3 NO. 2002-1433 CRIMINAL TERM DISCUSSION The defendant was charged with robbery under Section 370 1 (a)(ii) of the Crimes Code which provides as follows: ~ 3701. Robbery. (a) Offense defined.- (1) A person is guilty of robbery if, in the course of committing a theft, he: (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; 18 Pa. C.S.A. S 3701(a)(1)(ii). He was charged not only as a principal, but also as an accomplice under Section 306 of the Crimes Code. That section provides, in relevant part, as follows: ~ 306. Liability for conduct of Another; complicity. (a) General rule.-A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (b) Conduct of another.-A person is legally accountable for the conduct of another person when: (3) he is an accomplice of such other person in the commission of the offense. ( c) Accomplice defined. - A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he: (ii) aids or agrees or attempts to aid such other person in planning or committing it; 18 Pa. C.S.A. S 306(a),(b)3, (c)(l)(ii). While the defendant did not actually commit the thefts, the evidence was certainly sufficient to support his conviction for robbery. By cutting off the victims' escape route 4 NO. 2002-1433 CRIMINAL TERM to the rear, and brandishing a firearm of his own, he provided assistance to the codefendant who committed the actual thefts. 10 Defendant argues that the Commonwealth's failure to secure a conviction on the conspiracy charge renders the conviction on the robbery charge invalid. 11 He contends that the jury's failure to find that he conspired to commit the robbery with his codefendant confirms his version of events, i.e. he was merely present at the scene and did not participate in the robbery. However, the law in this Commonwealth is quite clear. As the Superior Court recently noted: In this jurisdiction, inconsistent verdicts are not a basis for reversal. Commonwealth v. Larsen, 452 Pa.Super. 508,682 A.2d 783 (1996). "The rationale for allowing inconsistent verdicts is that it is the jury's sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment. [A]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v. Miller, 441 Pa.Super. 320, 657 A.2d 946, 948 (1995) (citation, quotation, and quotation marks omitted). Inconsistent verdicts by a jury will not be disturbed, provided that the Commonwealth produces sufficient evidence of the crime for which the defendant is convicted. Id Commonwealth v. Gillen, 798 A.2d 225,230 (Pa.Super. 2002). (emphasis added). In the instant case, there was more than sufficient evidence to sustain the defendant's conviction for the crime of robbery. 10 There is no dispute over whether the victims were intentionally put in fear of immediate serious bodily InJury. 11 See "Brief in Support of Defendant's Concise Statement of Matters Complained of on Appeal." The jury was unable to reach a unanimous verdict on the charge of conspiracy to commit robbery. (18 Pa. C.S.A. ~ 903) Therefore, we declared a mistrial on that particular count. The charge was eventually nolle prossed by the District Attorney. 5 NO. 2002-1433 CRIMINAL TERM DATE: Edward E. Guido, J. Jaime Keating, Esquire For the Commonwealth Ellen K. Barry, Esquire F or the Defendant :sld 6