Opinion
J-A32004-15 No. 149 WDA 2015
01-25-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHALSEE L. HUGHES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 1, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0000429-2013 BEFORE: SHOGAN, OTT, and STABILE, JJ. MEMORANDUM BY SHOGAN, J.:
Appellant, Chalsee L. Hughes, appeals from the judgment of sentence entered following her convictions of robbery and conspiracy to commit robbery. We affirm.
We summarize the history of this case as follows. Shortly after midnight on December 3, 2012, Monessen police discovered the dead body of Christopher Fincik ("Victim") lying inside of the front doorway of his home. The rear door of the home had bullet holes and shattered glass. The kitchen was in disarray with blood on the walls and floor. There was a trail of blood from the kitchen to the front door where the body was found. Police observed drugs, drug paraphernalia, and currency in the amount of $3,241.00 on the kitchen table. Outside the rear door were two Winchester 7.62 x 39 discharged cartridge cases and one Tulammo 7.62 x 39 discharged cartridge case which can be fired from an AK-47 assault rifle.
For a more detailed recitation of the facts of this case, we direct the reader to pages 2 through 12 of the opinion of the trial court dated December 23, 2014.
The following day, police executed an arrest warrant for Earl Pinkney on unrelated crimes and a search warrant for his residence on Chestnut Street in Monessen. Appellant (who was Pinkney's girlfriend) was found at Pinkney's residence and was taken to the Monessen Police Department where she was interviewed after waiving her Miranda rights. Appellant told police that she had spent most of the day of December 2, 2012, with Pinkney, and that they were in bed together all night.
On December 5, 2012, Appellant contacted Monessen Police seeking her cell phone that had been seized in the search of Pinkney's residence on December 4, 2012. Appellant went to the police station where she again waived her Miranda rights and was interviewed. Police knew that Appellant was seen on video at a Wal-Mart, along with Josh Stepoli and Antoine Hairston, purchasing a box of Winchester 7.62 x 39 ammunition at 9:12 p.m. on December 2, 2012. Appellant claimed that she purchased the ammunition because Stepoli did not have a proper form of identification. Appellant also claimed that Pinkney admitted to her that Pinkney, Stepoli, and Hairston robbed Victim and shot him. (As it turns out, Victim was Appellant's godfather.) Subsequently, Appellant made statements to a fellow inmate implicating herself in the robbery of Victim.
On December 27, 2012, Appellant was charged with various crimes in relation to the death of Victim, including murder, robbery, and conspiracy. Appellant's jury trial began on March 25, 2014. At Appellant's trial, the defense was precluded from mentioning that neither Stepoli nor Hairston was criminally charged. The Commonwealth was permitted to admit testimony from a police officer regarding Appellant's statements to police about Pinkney's confession to Appellant.
At the conclusion of her trial, Appellant was convicted of robbery as an accomplice and criminal conspiracy to commit robbery. The jury found Appellant not guilty of the remaining charges. On July 1, 2014, the trial court sentenced Appellant to concurrent terms of incarceration of four and one-half to nine years. Appellant filed a timely post-sentence motion, which the trial court denied. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review, which we have renumbered for ease of disposition:
I. THE TRIAL COURT ERRED BY PRECLUDING THE DEFENSE FROM PRESENTING EVIDENCE AND ARGUING THAT THE COMMONWEALTH'S DETERMINATION NOT TO FILE CHARGES AGAINST [APPELLANT'S] ALLEGED CO-CONSPIRATORS COULD BE CONSIDERED BY THE JURY IN THEIR DELIBERATIONS OF [APPELLANT'S] GUILT.
II. THE TRIAL COURT ERRED IN ALLOWING DOUBLE-HEARSAY TESTIMONY OF A NON-TESTIFYING WITNESS, EARL PINKNEY, RELATING TO MR. PINKNEY'S INVOLVEMENT IN THE SHOOTING AND ROBBERY.Appellant's Brief at 4.
III. WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO CONCLUDE THAT [APPELLANT] WAS GUILTY OF ROBBERY AS AN ACCOMPLICE AND CONSPIRACY TO COMMIT ROBBERY.
IV. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
Appellant first argues that the trial court erred in precluding her attempt to admit into evidence the fact that the Commonwealth failed to file charges against her co-conspirators. Appellant's Brief at 12-15. Appellant contends that the Commonwealth's determination to not charge Stepoli and Hairston in the instant matter was relevant to the jury's determination regarding whether Appellant was an accomplice.
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision on such a question absent a clear abuse of discretion. Commonwealth v. Maloney , 876 A.2d 1002, 1006 (Pa. Super. 2005). 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 or the record. Commonwealth v. Cameron , 780 A.2d 688, 692 (Pa. Super. 2001).
Pa.R.E. 402 provides that generally, "[a]ll relevant evidence is admissible" and "[e]vidence that is not relevant is not admissible." Furthermore, Pa.R.E. 401 provides the following test for relevancy:
Evidence is relevant if:Pa.R.E. 401.
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Thus, the basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Commonwealth v. Freidl , 834 A.2d 638, 641 (Pa. Super. 2003). Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Commonwealth v. Barnes , 871 A.2d 812, 818 (Pa. Super. 2005). Though relevance has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Freidl , 834 A.2d at 641.
In addition, we are mindful that our state legislature has pronounced the following regarding liability for conduct of another and prosecution as an accomplice:
An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.18 Pa.C.S. § 306(g).
In Commonwealth v. McEnany , 732 A.2d 1263 (Pa. Super. 1999), this Court applied the above statute along with relevant case law and held that "the fact that [the a]ppellant's alleged co-felon was not charged was irrelevant if offered to prove [the a]ppellant's innocence. Accordingly, the trial court properly precluded [the a]ppellant's attempt to show that his alleged co-felon was not charged with any crime surrounding the murder of [the victim]." Id . at 1274. In addition, we have explained, "The express language of [18 Pa.C.S. § 903 regarding conspiracy] does not require that an alleged co-conspirator be charged or convicted of the conspiracy." Commonwealth v. Fremd , 860 A.2d 515, 521 (Pa. Super. 2004).
Our review of the record reflects that, at the outset of Appellant's opening argument, defense counsel mentioned the fact that neither Stepoli nor Hairston had been charged in the crime and the Commonwealth immediately objected based upon relevancy. N.T., 3/25/14-4/2/14, at 14. The trial court sustained the Commonwealth's objection and instructed the jury that "[t]he status of any other person who may or may not be an accomplice . . . is not relevant as to the evidentiary proofs that must be brought in this case." Id . at 15-16. This determination by the trial court was in accord with the above-mentioned legal authority. Therefore, we cannot conclude that the trial court abused its discretion in refusing to permit Appellant to discuss or present evidence regarding the fact that Appellant's co-conspirators had not been criminally charged. Thus, this claim lacks merit.
Appellant next argues that the trial court erred in admitting, what Appellant claims to be, double hearsay testimony. Appellant's Brief at 16-21. Specifically, Appellant alleges that her statement to Detective Robert Weaver concerning what her boyfriend, Earl Pinkney, told her regarding the crime the day after the incident was not made in furtherance of a conspiracy with Stepoli and Hairston, and therefore should not have been admitted at trial.
Hearsay has been defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Pa.R.E. 801(c). Commonwealth v. Smith , 586 A.2d 957, 963 (Pa. Super. 1991). Hearsay testimony is not admissible in this Commonwealth, except as provided in the Pennsylvania Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. "The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact." Commonwealth v. Bean , 677 A.2d 842, 844 (Pa. Super. 1996).
In addressing Appellant's claim the trial court offered the following discussion in its opinion denying post-sentence motions, which we adopt as our own and reproduce verbatim:
We note that the judge authoring the opinion and order denying Appellant's post-sentence motions was not the same judge presiding at Appellant's trial.
[Appellant] alleges that the Court erred in permitting Det. Weaver to testify regarding statements that [Appellant] told Det. Weaver that Pinkney made to [Appellant]. [Appellant] raised the issue multiple times during the trial and extensive argument was heard regarding the same. The contested statements were the following:
A: ... And also we talked about, she told me that people were saying that [Pinkney] was involved in the shooting. And she said she asked, confronted him. The first time he denied it, but he was acting real weird. So, she kept pushing it. And [Pinkney] then admitted that him, [Stepoli], and [Hairston] went to [Victim's] house to rob him, because they knew he had a lot of money. And that during the course of the robbery, [Victim] was shot and killed. She said that [Pinkney] apologized, because he said that if he would have known that [Victim] was her godfather, he wouldn't have went.
Q: Did [Pinkney] indicate anything about whether or not they were able to complete the robbery?
A: No, [Pinkney] told her that they didn't get anything. He said when they were there, [Pinkney] saw a girl go to the door. [Victim] opened the door to let the girl in, and that is when it happened.
N.T. 631. The Defense argued that said statements were "double hearsay" and not within the co-conspirator's exception to the hearsay rule. The Commonwealth argued that [Appellant's] statement to Det. Weaver was a statement of a
party opponent pursuant to Pa.R.E. 803(25)(A) and, as such, was admissible in its entirety (including Pinkney's statements to [Appellant]).
"Hearsay" is a statement that the declarant does not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of the matter asserted in the statement. Pa.R.E. 801(c). Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. A statement offered against an opposing party that was made by the party in an individual or representative capacity is commonly referred to as an admission by a party opponent. 803(25)(A).
Although the Commonwealth argues that Pinkney's statements through [Appellant] are an admission by party opponent, this Court does not make such a finding. Rather, Pinkney's statements offered by [Appellant] through Det. Weaver are hearsay within hearsay. However, this Court agrees with the ruling of the trial court that the statements are excepted by the rule against hearsay under the co-conspirator exception. A statement offered against an opposing party that was made by the party's co-conspirator during and in furtherance of the conspiracy is not excluded by the rule against hearsay, regardless of whether the declarant is available. Pa.R.E. 803(25)(E).
Prior to the Court admitting the above-referenced statements under the co-conspirator's exception to hearsay rule, the Court heard testimony regarding the existence of a conspiracy from [Appellant's] cellmate Amy Calabrese (hereinafter "Calabrese"). Calabrese testified:
Q: Did you have one conversation with her before your preliminary hearing, or more than one conversation?
A: More than one.
Q: And did she ever talk to you about the nature of the charges that were [filed] against her?
A: Yes.
Q: And what in essence did she tell you about the charges and her involvement in the case?
A: She had told me that it was a, that she had killed somebody. It was a homicide charge.
Q: Did she identify the victim in the case?
A: She said her godfather, she kept saying Snacks.
Q: Did she indicate what led up to that, or what her involvement was?
A: She was at the Wal-Mart on videotape buying the bullets, and those, and that is how they had gotten her for all the charges.
Q: And did she say, identify who was involved?
A: Yes, she said Josh. I remember the name Josh. And then Antoine was the other name, so...
Q: And did she say what they did?
A: She said that they got in the car and all rode together. And she wasn't sure. She said she told the police that she didn't know they were going to do this, but she really did know. Yeah, she said she used her I.D., went into Wal-Mart and bought bullets, and got back in the car.
Q: And did she indicate... [w]hy the bullets were purchased at that time?
A: Yeah, they were going to rob somebody.
Q: Did she say who was going to rob somebody?
A: Her and two other people.
. . .
Q: And did she indicate why this robbery was intended to take place, why they were robbing Snacks?
A: They wanted the money and the drugs.
. . .
Q: Did Miss Hughes indicate anything about what her intentions were in the future...what she wanted to do with her life?
A: She said she thought it was cool to be a drug dealer. That is what she wanted to do to make money.
Q: Now did she indicate what she told the police about her involvement in this case?
A: Yeah, she told the police that she only, that she didn't know what was going on, that she just, she didn't go to the house, and she didn't tell them about the gun that they ended up destroying.
Q: What did she tell you about that?
A: She said that they went to some woman's house and destroyed the gun.
Q: What gun was she referring to, do you know?
A: Whatever gun they used in the robbery, that is what she said.
. . .
Q: Now you indicated that she told you, she related some details that she did following Snacks being shot. What did she say, Amy?
A: She said that she had taken them, they left, and they went and destroyed the gun.
Q: Did she say where they went to destroy the gun?
A: Some woman's house. She said the police will never find it.
Q: And did she indicate whether or not she actually saw the gun being destroyed?
A: She did say she did see it destroyed. N.T. 564-570.
After hearing the above testimony, the Court made the following ruling regarding whether to admit Pinkney's statements under the co-conspirator's exception:
Court: After listening to her testimony, I refer you again to the Commonwealth case, Commonwealth vs. Cull. And Cull indicates that if the conspiracy is ongoing, then the statement would come in as an exception under the co-conspirator rule. Even though it is close, I think that this witness has established that the conspiracy was ongoing, and this business of covering up the conspiracy was occurring. Because according to her testimony, whether it is believable or not by the jury, her testimony was-and the jury could believe this-that they went and destroyed the weapon in order to help cover up the crime. And that fits in with the notion of the ongoing conspiracy rule.
Defense Counsel: And I understand the Court's ruling. I want to indicate for the record, as I indicated prior, this alleged statement by Earl Pinkney to her, according to Det. Weaver's interview, took place the next evening, approximately at least 18 hours later, even if you would believe that they destroyed this weapon. So, I would assert for the record that I don't believe the conspiracy was still ongoing at that point.
Court: Okay, I understand that. But I believe there is at least circumstantial evidence that in this case part of the crime was to continue covering up. N.T. 607-608
This Court agrees with the Trial Court that there was ample evidence that a conspiracy existed and that Pinkney's statement regarding concealing the crime was in furtherance of the conspiracy. Therefore, this Court finds that it was not error for the trial court to admit Pinkney's statement.
Even if Pinkney's statement were improperly admitted, any error was harmless. In harmless error analysis, the Commonwealth has the burden of proving beyond a reasonable doubt that the error could not have contributed to the verdict. Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007); Commonwealth v. Mitchell, 839 A.2d 202, 214 (Pa. 2003). An error may be deemed harmless, inter alia, where 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. Id. (internal citations omitted).
After review of the entire record, the Commonwealth's argument regarding this issue is persuasive. Evidence of a robbery was clear in that Manges and Calderone, who were inside Victim's home at the time of the killing, testified that individual(s) were attempting to force open the back door as Victim attempted to close the door before shots were fired and Victim was killed. N.T. 151-155. A substantial amount of drugs and money were on the kitchen table at the time of the killing. N.T. 361-366. Stepoli told [Appellant] that Stepoli intended to "hit a lick" (to commit a robbery). N.T. 628-630. [Appellant] used her identification to purchase ammunition at Wal-Mart at 9:12 p.m. on December 2, 2012. N.T. 221-223; 626-628. The killing of Victim took place at approximately 12:25 a.m. on December 3, 2012. N.T. 348. Calabrese testified that [Appellant] admitted to her that [Appellant] was engaged in a robbery for drugs and money from Victim. N.T. 564-567.
Pinkney's statement implicated himself in the crime and potentially assisted [Appellant] in that Pinkney's statement contradicted Calabrese's testimony regarding [Appellant's] statements to Calabrese. Additionally, Pinkney's statements did
not implicate [Appellant] in the crime. For the aforementioned reasons, this Court finds that if it was error to admit Pinkney's statements under the co-conspirator exception to the rule against hearsay, any error was harmless because any prejudicial effect of the alleged error was so insignificant that it could not have contributed to the jury's verdict.Trial Court Opinion, 12/23/14, at 19-24. We agree with the trial court that the statement was properly admitted, and we conclude that Appellant's contrary claim lacks merit.
Commonwealth v . Cull , 656 A.2d 476, 481 (Pa. 1995).
Appellant next argues that there was insufficient evidence to support her convictions. Appellant's Brief at 26-28. Appellant asserts there was insufficient evidence that the men who shot the victim were attempting to commit a robbery because there was no evidence that anything was taken from the victim's home, and that Appellant's use of her driver's license to assist in the purchase of bullets was insufficient to establish a conspiracy.
When reviewing a challenge to the sufficiency of the evidence, we evaluate the record in the light most favorable to the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Duncan , 932 A.2d 226, 231 (Pa. Super. 2007) (citation omitted). "Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Id . (quoting Commonwealth v. Brewer , 876 A.2d 1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not establish guilt to a mathematical certainty, and it may sustain its burden by means of wholly circumstantial evidence. Id . Moreover, this Court may not substitute its judgment for that of the fact finder, and where the record contains support for the convictions, they may not be disturbed. Id . Lastly, we note that the finder of fact is free to believe some, all, or none of the evidence presented. Commonwealth v. Hartle , 894 A.2d 800, 804 (Pa. Super. 2006).
The trial court, in addressing this issue in Appellant's post-sentence motion, provided the following comprehensive discussion, which we adopt:
In this case, the jury found [Appellant] Guilty of Robbery under a theory of accomplice liability and Guilty of Conspiracy to Commit Robbery. In Pennsylvania, a person is guilty of Robbery, if, in the course of committing a theft, he: (i) inflicts bodily injury upon another. 18 Pa.C.S.A. § 3701(a)(1)(i). An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or if in flight after the attempt or commission. 18 Pa.C.S.A. § 3701(a)(2). Under Pennsylvania law, a defendant can be proved liable for the conduct of another person(s) when the defendant is an accomplice of the person who actually commits the crime:
(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.
[* * *]
(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:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it; or
(2) his conduct is expressly declared by law to establish his complicity.
18 Pa.C.S.A. § 306(a),(c)(1)-(2). In Commonwealth v. Rega, the Pennsylvania [Supreme] Court explained:
An accomplice is one who "actively and purposefully engages in criminal activity [and is] criminally responsible for the criminal actions of his/her co-conspirators which are committed in furtherance of the criminal endeavor." Accordingly, two prongs must be satisfied for a person to be labeled an "accomplice." First, there must be evidence that the person intended to aid or promote the underlying offense. Second, there must be evidence that the person actively participated in the crime by soliciting, aiding, or agreeing to aid the principal. Further, a person cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene. There must be some additional evidence that the person intended to aid in the commission of the underlying crime, and then aided or attempted to aid.
933 A.2d 997, 1015 (Pa. 2007) (internal citations omitted). For purposes of accomplice liability, "[n]o agreement is required, only aid." Commonwealth v. Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005). With regard to the amount of aid, it need not be substantial so long as it was offered to the principal to assist him or her in committing or attempting to commit the crime. Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004). The least degree of assistance in committing the offense is adequate to sustain the finding of responsibility as an accomplice. Commonwealth v. Gladden, 665 A.2d 1201, 1209 (Pa. Super. 1995) (internal citations omitted).
[Appellant] argues that there is insufficient evidence to show that [Appellant] had the intent of promoting or facilitating the commission of the robbery and/or that, even assuming that [Appellant] was aware that the individual was planning to commit a robbery, merely agreeing to provide a driver's license to allow an individual to purchase bullets is also insufficient evidence of [Appellant's] guilt. [Appellant] also argues that there was insufficient evidence for the jury to conclude that [Appellant] was an accomplice to robbery because the jury would also have had to conclude that there was proof beyond a
reasonable doubt that Stepoli and/or Hairston engaged in the robbery.
The Commonwealth argues that there was sufficient evidence to support [Appellant's] conviction for robbery.
Although this Court did not conduct the trial in this matter, Judge Alfred Bell addressed this issue when, at the close of the Commonwealth's case-in-chief, [Appellant] made a motion for Judgment of Acquittal. The following exchange occurred:
Defense Counsel: Well, Your Honor, I make a motion for Judgment of Acquittal on all the charges. I don't believe there is sufficient evidence to allow this jury to deliberate. I don't believe there is sufficient evidence to show that the individuals that [Appellant] is alleged to have assisted in this crime actually committed the crime. And I don't believe there is sufficient evidence to show there was an agreement to commit this crime.
Commonwealth: Your Honor, as to the proving who actually committed the crime, [Appellant] has told the Court through Detective [Robert] Weaver, that her boyfriend[,] Earl Pinkney, said that he, and Josh Stepoli, and Antoine Hairston went there to rob [Victim].
Court: Even not considering that; there is circumstantial evidence that Stepoli and Hairston purchased the ammunition, and had told [Appellant] that they were going to commit a robbery, within two hours or three hours of the time of the killing. So, that is circumstantial evidence, even disregarding her statement.
Commonwealth: And so obviously, there is an agreement in this case, because [Appellant] agreed to aid them in the robbery, because she bought the bullets for them, she knew they were going to commit a robbery before they went to Wal-Mart, and she bought the bullets, that obviously facilitated the robbery, and was an aid to them in committing the robbery.
Court: There was sufficient evidence in the record, if believed by the jury, that [Appellant] entered into an agreement to at least aid. That is the jury's determination. That is why we are here. But there is testimony by the statement to Det. Weaver that she said, and we have a videotape showing her actually buying the ammunition, handing the money to the clerk and receiving the bullets, and carrying them out in a bag. And she said that she knew prior to that, in her statement to Weaver, if believed by the jury, that she knew they were going to commit a robbery.
Now there is no time frame expressed. Det. Weaver didn't say she said when it was going to happen, but at least by her statement that the ammunition was being purchased for the purpose of being used in a robbery, so your motions are denied.
N.T. 711-714.
This Court, having reviewed the entire record in this case, finds no error in Judge Bell's determination that there was sufficient evidence for the jury to deliberate. Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, there was sufficient evidence to support [Appellant's] conviction for robbery. As noted above, the amount of aid provided to the principal need not be substantial. This Court finds that [Appellant] intended to promote or facilitate the robbery, and that [Appellant] provided substantial aid to the commission of the robbery by purchasing the bullets that [Appellant] knew would be used in the robbery. By [Appellant's] own statement to Det. Weaver, at a minimum, [Appellant] knew prior to the robbery that Stepoli and Hairston intended to commit a robbery. [Appellant] knew that Stepoli, Hairston, and her boyfriend, Pinkney had committed robberies together in the past, and that they used guns during those robberies. Yet, [Appellant] willingly purchased the ammunition at Wal-Mart knowing that said ammunition would be used to "hit a lick" (commit a robbery).
[Appellant] also argues that there was insufficient evidence for the jury to conclude that [Appellant] was an accomplice to
robbery because the jury would have had to conclude beyond a reasonable doubt that Stepoli and/or Hairston engaged in the robbery. [Appellant] raised this issue at trial and was granted an instruction by the Court which required the jury to conclude beyond a reasonable doubt that all of the elements of the offensive robbery had been met against Stepoli and/or Hairston prior to concluding that [Appellant] would be guilty of robbery. N.T. 795-800. Evidence was presented at trial that there was drug paraphernalia, a large amount of money, and numerous types of drugs at Victim's residence. [Appellant] argues that there was no money, drugs, or anything else taken from Victim's home the night Victim was shot. However, robbery does not require that the crime be completed; one can be guilty of robbery by attempting to commit robbery.Trial Court Opinion, 12/23/14, at 14-17 (some citations omitted). In light of the testimony of Detective Weaver that Appellant admitted to purchasing ammunition identical to that used in the robbery and the testimony from Amy Calabrese that Appellant admitted to planning the robbery and transporting the co-conspirators, we are constrained to agree with the determination reached by the trial court. Thus, Appellant's challenge to the sufficiency of the evidence lacks merit.
Further, [Appellant's] admissions presented at trial through Det. Weaver and Calabrese provide circumstantial evidence that Stepoli and/or Hairston engaged in an attempted robbery. Evidence was presented at trial that three men attempted to gain entry into Victim's house and that, after Victim resisted said entry, at least one of the suspects fired a gun through a door which resulted in Victim being shot and killed. Additional evidence was presented at trial by eyewitness Morris to the approximate height of the three suspects and further circumstantial evidence was presented at trial by Det. Dupilka regarding Stepoli, Hairston, and Pinkney's height. As indicated above, it is the sole province of the fact finder to determine the credibility and to believe all, part or none of the evidence presented. In the case sub judice, based on the evidence presented, a jury could reasonably infer that there was sufficient evidence presented to support the convictions of Robbery and Conspiracy to Commit Robbery. Viewing all of the evidence in a light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences therefrom, the evidence was sufficient to support the jury's verdict of guilty of the charges.
Appellant last argues that the verdict was against the weight of the evidence. Appellant's Brief at 22-25. Appellant alleges that the jury improperly gave greater weight to the fact that the Victim was killed over the facts surrounding Appellant's involvement in the crime and should have given greater weight to the fact that the perpetrators did not enter the home after the Victim was shot which establishes that a robbery was not contemplated.
In Commonwealth v. Clay , 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following standards to be employed in addressing challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer , 560 Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown , 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer , 560 A.2d at 319-20, 744 A.2d at 752. Rather, "the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id . at 320, 744 A.2d at 752 (citation omitted). It has often been stated that "a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Brown , 538 Pa. at 435, 648 A.2d at 1189.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Brown , 648 A.2d at 1189. 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 against the weight of the evidence. Commonwealth v. Farquharson , 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 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.
Widmer , 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained:
The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
Widmer , 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-[11]85 (1993)).Clay , 64 A.3d at 1054-1055. "Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs , 949 A.2d 873, 879-880 (Pa. 2008).
Our review of the record reflects that the trial court addressed Appellant's challenge to the weight of the evidence and determined that it lacked merit. Specifically, the trial court stated the following with regard to Appellant's challenge to the weight of the evidence supporting her convictions:
[Appellant] argues that the jury gave greater weight to the evidence of the killing of Victim by the robbers than the actual facts of [Appellant's] involvement. However, the jury acquitted [Appellant] of the killing and only convicted [Appellant] of the crimes with regard to robbery. The jury was certainly capable of determining whether to believe all, part, or none of the evidence with respect to whether the Commonwealth met its burden in charging [Appellant] with Robbery and Conspiracy to Commit Robbery. Based upon this Court's review of the entire record, this Court does not find that the jury's verdict is so contrary to the evidence as to shock this Court['s] sense of justice. Therefore, this Court does not find that the jury's verdict was against the weight of the evidence.Trial Court Opinion, 12/23/14, at 18.
The jury, sitting as the finder of fact, was free to believe all, part, or none of the evidence against Appellant, as was its right. The jury weighed the evidence and concluded Appellant perpetrated the crimes in question. This determination is not so contrary to the evidence so as to shock one's sense of justice. We decline Appellant's invitation to assume the role of fact finder and to reweigh the evidence. Accordingly, we conclude that the trial court did not abuse its discretion in determining Appellant's weight of the evidence claim lacked merit. Thus, this claim fails to provide Appellant relief.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/25/2016
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