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HomeMy WebLinkAboutCP-21-CR-0000088-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : VINCENT LEE FLEMISTER : CP-21-CR-0088-2009 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., November 22, 2010:-- In March 2010, a jury convicted Vincent Lee Flemister (Defendant) of two counts of robbery, criminal conspiracy to robbery, aggravated assault, burglary, criminal attempt to criminal homicide, and criminal trespass. He now appeals his convictions arguing, first, that the verdicts were against the weight of the evidence and second, that the Commonwealth failed to disclose an agreement to sentence his accomplice leniently in exchange for testimony. For the following reasons, these contentions lack merit and the Superior Court should affirm the convictions. I. Weight of the Evidence It is well-settled that in considering a challenge to the sufficiency of the evidence, the reviewing court views the evidence in the light most favorable to the Commonwealth as the verdict winner and draws all reasonable inferences in the Commonwealths favor. Commonwealth v. O'Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003). Further, as the trier of fact, the jury is the ultimate arbiter of the weight of the evidence and credibility of witnesses. As such, they are free to believe all, part, or none of the evidence. Commonwealth v. Griscavage, 517 A.2d 1256, 1257 (Pa. 1986). CP-21-CR-0088-2009 A. Victim Testimony Defendant first attacks the testimony of the two victims who identified the Defendant as their assailant. He argues the victims' testimony was unreliable because they “had a limited opportunity to view their assailant because [he] wore a mask and had a hood pulled down over his head.” Concise Statement of the Errors Complained of on Appeal (Concise Statement) at ¶1(a). He also contends, “[t]here was no lineup or photo array and the Courtroom identification was very suggestive.” Id. Defendant's argument amounts to no more than an attack on the victims' credibility and must therefore be rejected. Both victims identified Defendant as their assailant in open court. Defendant's counsel cross-examined both victims extensively regarding their ability to identify the masked attacker. Notwithstanding Defendant's attacks on the victims' credibility, the jury found the victims' identification of Defendant credible and that determination should not be disturbed. B. Accomplice Defendant next attacks the credibility of his accomplice. He argues the accomplice, Andres Rodriguez, was “an admitted accomplice and therefore a polluted source of information.” Concise Statement at ¶1(b). Again, Defendant's argument does no more than attack the jury's credibility determinations and must be rejected. It is well established that in any case where an accomplice testifies against a defendant, the court should tell the jury that the accomplice is a corrupt and polluted source whose testimony should be viewed with great caution. -2- - CP-21-CR-0088-2009 Commonwealth v. Chmiel, 639 A.2d 9, 13 (Pa. 1994). At trial, Rodriguez testified extensively regarding the planning, execution, and aftermath of Defendant's crimes. He also testified to his own role as Defendant's accomplice. Further, during jury instructions, the court gave a corrupt source charge warning the jury of the inherent unreliability of an accomplice's testimony. Despite all this, the jury found Rodriguez credible and convicted Defendant of all charges against him. Again, witness credibility is exclusively the jury's prerogative. Here, the jury was well aware of Rodriguez's status as a polluted source of information yet still found him credible. A reviewing court should not disturb this determination. C. Conclusion – Weight of the Evidence The guilty verdicts against Defendant were amply supported by the evidence. Notwithstanding extensive corroborating circumstantial evidence not challenged here, both victims identified Defendant as their attacker and his accomplice testified to the planning, execution, and aftermath of the crimes. In fact, Rodriguez's testimony alone could constitute sufficient evidence to support the guilty verdicts. Commonwealth v. Mikell, 729 A.2d 566, 570 (Pa. 1999) (“[A] a verdict may be predicated upon the uncorroborated testimony of an accomplice.”). For these reasons, the verdicts are supported by sufficient evidence and should be affirmed. II. Undisclosed Agreement Between Commonwealth and Rodriguez Defendant next asserts, “that the Commonwealth and Andres Rodriguez failed to disclose to the Defense and to the jury in testimony the benefit that -3- - CP-21-CR-0088-2009 Andres Rodriguez would receive for his testimony in this case.” Concise Statement at ¶2. Because Defendant offers little more than conjecture that such an agreement exists, this argument must be rejected. At trial, Rodriguez testified that there were no deals for his testimony other than he would receive consideration for his cooperation. After Defendant's convictions, Rodriguez pled guilty to a charge of criminal conspiracy and was initially sentenced to 391 days (time served) to seven years incarceration with immediate parole. His sentence was subsequently amended to time served to five years less a day, and then amended to a sentence of 11 ½ months to 23 months in county prison followed by a consecutive probationary sentence of 36 months. The Commonwealth did not oppose these sentencing modifications. On these facts, Defendant imagines some agreement exists beyond the mere consideration mentioned at trial. He is incorrect. The Commonwealth is obligated to disclose exculpatory evidence material to the guilt or punishment of an accused. Brady v. Maryland, 737 U.S. 83 (1963). Exculpatory evidence includes impeachment evidence material to the case against the accused. Commonwealth v. Burkhardt, 833 A.2d 233, 241 (Pa. Super. 2003). An agreement for leniency in exchange for testimony is relevant to a witness's credibility. Id. Thus, the Commonwealth is obligated to disclose the existence of such an agreement with a witness where that witness's testimony is material to the Defendant's guilt or innocence. Commonwealth v. Strong, 761 A.2d 1167, 1171 (Pa. 2000). Here we need not address the materiality of Rodriguez's testimony -4- - CP-21-CR-0088-2009 because the record contains nothing to indicate the existence of an undisclosed agreement. What the record does indicate is that Rodriguez testified he would receive consideration for his cooperation with the investigation and prosecution of Defendant. The sentence he received and its subsequent modifications reflect just that, consideration for his cooperation, nothing more. Defendant offers only 1 speculation to show the existence of an undisclosed agreement. Thus, his contention lacks merit. Commonwealth v. Morales, 701 A.2d 516, 523 (Pa. 1997). III. Conclusion In sum, the guilty verdicts against Defendant are amply supported by the evidence. Both victims and his accomplice all positively identified Defendant as the assailant. Notwithstanding the corroborative circumstantial evidence not challenged here, the eyewitness and accomplice testimony constitute sufficient evidence to support all the guilty verdicts duly rendered by the jury. Further, Defendant's allegation of an undisclosed leniency agreement lacks merit. His contention lacks any support in the record, is purely conjecture, and must be rejected. For all these reasons, the Superior Court should affirm the guilty verdicts in all respects. The multiple sentences are not an indication of court complicity in some 1 nefarious agreement. To the contrary, they are indication of a new judge’s attempts to get the sentencing right. Once I determined that time served was appropriate it was just a matter of making sure that the sentence permitted the county and not the state to provide the supervision. Therefore, with respect to awkward sentencing behaviors, I plead guilty; however, with respect to “suggestive circumstances,” both the record and I should be found not guilty. -5- - CP-21-CR-0088-2009 By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Taylor P. Andrews, Esquire For Defendant :saa -6- -