Opinion
741 WDA 2021 J-A29044-22
02-15-2023
COMMONWEALTH OF PENNSYLVANIA v. JAKWARIS ROBISON, Appellant
Joseph D. Seletyn, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Joseph D. Seletyn, Esq. Prothonotary
Appeal from the Judgment of Sentence Entered April 23, 2021, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-CR-0000716-2020.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM
KUNSELMAN, J.
Jakwaris Robison appeals pro se from the judgment of sentence imposed following his convictions of second-degree murder, robbery, conspiracy, and flight to avoid apprehension.
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1), 903, and 5126(a), respectively.
Robison's convictions arose from his activities on January 19, 2020, when he conspired with co-defendant, Marshawn Williams and co-conspirators Melissa Seaman and Michael Toles, to arrange and consummate a drug transaction with, and robbery of, Devin Way outside Way's residence in Erie. During the robbery, Way was shot and killed.
The trial court detailed the pertinent facts and trial testimony regarding the shooting incident as follows:
Earlier on January 19, 2020, Seaman, Toles, and Robison were riding as passengers in a grey, four-door Honda operated by Williams. While the group was driving around, Seaman messaged various third parties on her cell phone in an attempt to "see if anyone ha[d] any drugs or money that would be a possible lick." (In their vernacular, a lick is a robbery victim). After a potential target, Cohen Heath, failed to respond, Seaman continued to reach out to others on her cell phone until she successfully made contact with [Devin Way]. Way agreed to sell two (2) ounces of marijuana in exchange for $400.00.
The four co-conspirators proceeded to the Dollar Tree store located in the Liberty Plaza. [Robison], co-defendant Williams Robison, and Toles exited the vehicle and obtained items from the store, some or all of which were not paid for. [Robison's] main purpose in going to the store was to obtain gloves to eliminate the possibility of fingerprints being left behind "in case things went bad." Before the three-some returned to the car, Toles heard [Robison] and Williams discuss harming Seaman "if things went bad" to prevent Seaman from saying something.
Meantime, while Seaman waited inside the car, for the three of them to return, she obtained from Way his address. When the three returned, Seaman announced "she felt like [Way] was going to be an easy person to get at."
At trial, Toles described the foursome's plan to rob Way:
That I was going to be in the back seat and Robison would still be in the back seat and [Seaman] would get in the [front] passenger seat. And our plan was to get out of the car and let [Way] in the middle and he was going to produce a gun and tell Way to get out.
With co-defendant Williams behind the wheel, the four proceeded to Way's residence. Way exited his home and approached the Honda. As planned, [Robison] exited the back seat and instructed Way to get in the middle, next to Toles. Way refused to get in the middle, so [Robison] re-entered the back seat, took the middle position, and Way got in the car after him. Way closed the door and Williams drove off.
Way directed Williams to turn from Southgate Drive onto Usonia Avenue. Way produced and passed around for "inspection" the marijuana for sale. However, as testified to by Seaman, no one in the vehicle actually had money on them to make the
purchase. The sham inspection continued, with Seaman passing the marijuana to Williams who stated he "was good" with the marijuana.
Following a brief period of awkward silence, the drug transaction morphed into the planned robbery of Way. According to the testimony of co-conspirator Toles, Toles pulled out a gun, reached around Robison, pointed the gun at Way, and instructed Way to get out of the car. Way refused and grabbed the gun. A struggle ensued between Toles and Way for the gun. Williams, from the driver's seat, called out for Robison to assist Toles.
In response, [Robison] squeezed out from between Way and Toles and exited the car though the driver's side rear door. [Robison] ran to the other side of the car to the rear passenger door, opened the door, raised his gun and started shooting at Way.
Toles testified [Robison], the sole shooter in this incident, fired the gun four (4) to six (6) times in quick succession. According to Toles, Way was shot in the back. Seaman testified she heard approximately (4) gunshots; she heard Toles yell that he was shot, too; and when she turned around, she saw blood on Toles' leg. Seaman testified she did not see or hear from Way again.
Toles, from his position behind Williams, observed Way turn toward [Robison], and that [Robison] continued to shoot. It is apparent from Toles' testimony that after [Robison] stopped firing, either Way fell out of the vehicle through the rear passenger door where [Robison] was standing, or [Robison] pulled Way out of the car. Regardless, Toles heard Way scream during the process. Way landed on the ground, face done in the snow. [Robison] jumped back into the car through the door from which Way fell.Trial Court Opinion, 12/13/21, at 2-4 (citations to record omitted).
The trial court also summarized the events that occurred after the shooting, as well as the eventual apprehension of Williams and Robison:
With Williams behind the wheel, the four attempted to drive away. Co-defendant Williams stopped the vehicle briefly and switched seats with Seaman so she could drive. Seaman, in a
panic, drove the Honda into a snowbank where it became temporarily stuck. At this juncture, [Robison] and Williams exited the car and started to run away.
Toles called out for [Robison] to return and get [Robison's] gun, Robison complied and Toles handed him Toles' gun as well. [Robison and Williams] then ran off again in the snow through someone's back yard.
Seaman managed to get the car unstuck and drove back past the shooting scene. Seaman, with Toles bleeding in the back seat, drove to a nearby Taco Bell on Peach Street where the Honda was pulled over by the police.
[Robison] and co-defendant Williams left the Erie area and each was missing for quite some time.
The police identified [Robison] as a suspect from surveillance video from the Dollar Tree Store in the Liberty Plaza. On January 22, 2021, a warrant was issued for [Robison's] arrest. The police learned [Robison] was on state parole and contacted his parole supervisor, Michelle Contis. Contis positively identified [Robison] from Dollar Tree surveillance video. Contis provided the police with [Robison's] cell phone number, which through investigation revealed he was hiding in Pittsburgh, Pennsylvania.
On January 24, 2021, [Robison] was apprehended in Pittsburgh, where he no longer was wearing the beard he had at the time of the murder. At trial, as the result of the [trial court's ] ruling on a motion in limine by [Robison's] counsel, no reference was made to Contis' job title, her role as [Robison's] parole supervisor, or to [Robison's] status as a parolee at the time of the murder.
With regard to co-defendant Williams, the evening of the shooting a warrant was issued for his arrest. Wanted billboards were posted by the U.S. Marshalls Fugitive Task Force in Cleveland, Buffalo, and surrounding areas. In July of 2020, approximately seven (7) months after Way's murder, the police located co-defendant Williams at a friend's residence in the 400 block of East 22nd Street in the City of Erie. Williams attempted to remain hidden inside the residence by eventually surrendered to the police.Trial Court Opinion, 12/13/21, at 4-6 (citations to record omitted).
Following a five-day jury trial, Robison was convicted of the above-enumerated offenses. On April 23, 2021, the trial court sentenced Robison to life without parole followed by an aggregate term of 12-24 years of imprisonment. On April 28, 2021, Williams filed a post-sentence motion, which the trial court denied. Robison filed a pro se notice of appeal, followed by a notice of appeal filed by trial counsel. Thereafter, trial counsel filed a motion to withdraw, which the trial court granted, and appellate counsel was appointed. After being granted a time extension, Robison filed a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal on August 30, 2021.
The jury convicted Williams of the same charges. His appeal is pending before this Court at No. 630 WDA 2021.
In response to an application for special relief, filed by appellate counsel, this Court, on October 8, 2021, remanded the case to the trial court for a Grazier hearing. On November 8, 2021, the trial court held the Grazier hearing and determined that Robison's waiver of counsel was knowing, voluntary and intelligent. Thus, Robison was permitted to proceed pro se, and the trial court directed Robison to file an amended Rule 1925(b) statement. Robison complied, and in his statement raised sixteen claims. The trial court responded to each claim in its Rule 1925(a) opinion filed on February 3, 2022.
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
Robison raises the same sixteen issues on appeal. In its Rule 1925(a) opinion, the trial court summarized, consolidated, and reordered these claims as follows:
1. Whether the Commonwealth committed Brady violations in a) withholding alleged "cooperation agreements" between the Commonwealth and [Toles and Seaman]; and b) withholding unspecified "exculpatory/impeachable evidence" regarding [Toles'] cooperation in another homicide case/investigation.
2. Whether abuse of discretion occurred in allowing evidence of unspecified "texting/telephonic messages between [Robison] and an unknown subject pertaining to an unrelated matter the prior day."
3. Whether abuse of discretion occurred in "not provid[ing] the jury with a cautionary instruction regarding the (sic) Pa.R.E. 404(b) after the [trial court] determined that the probative value of "the evidence" did not outweigh its potential for unfair prejudice."
4. Whether counsel was ineffective in failing to move for mistrial "after the [trial court] determined . . . the probative value of the evidence involving texting/telephonic messages between [Robison] and an unknown subject pertaining to an unrelated matter the prior day, did not outweigh its potential for unfair prejudice[.]"
5. Whether abuse of discretion occurred in "allowing" the Commonwealth to refence texting/telephonic messages during closing argument "even after . . . the trial court ruled that the texting/telephonic messages between [Robison] and an unknown subject pertaining to an unrelated matter the prior day was prejudicial to [Robison]."
6. Whether abuse of discretion occurred "by giving improper jury instructions".
7. Whether the evidence was sufficient to convict as to each conviction.
[8]. Whether abuse of discretion occurred in "allowing' the Commonwealth to: a) "Vouch or Bolster for witnesses", b)
"Comment on [Robison's] silence", and c) "misstate and misuse evidence and facts throughout [Robison's] trial.
[9]. Whether abuse of discretion occurred in denying the post-sentence motion claim that the verdict was against the weight of the evidence.Trial Court Opinion, 2/3/22, at 8-9 (citations omitted).
In his Rule 1925(a) opinion, the trial judge first noted that Williams' statement of the errors complained of on appeal was too vague and should be considered waived. According to Judge Brabender, Williams' Rule 1925(b) statement was "woefully inadequate" in that it failed "to specify which element or elements of any of the crimes" that "the Commonwealth failed to prove beyond a reasonable doubt. Trial Court Opinion, 12/13/21, at 7-9. Regarding the second claim in his Rule 1925 statement, Judge Brabender concluded that Williams "broadly avers evidentiary error occurred in admitting evidence" of "unspecified text messages." Id. at 15.
After careful review, and mindful of our standards of review, we conclude that the Honorable Daniel J. Brabender, Jr., has authored a thorough and well-reasoned opinion pursuant to Rule 1925(a) which addressed the issues raised by Robison in this appeal and found them to be without merit. Judge Brabender has correctly cited the applicable case law and we discern no legal errors or abuse of discretion in his analysis.
As such, we adopt Judge Brabender's Rule 1925(a) opinion as our own in affirming Robison's judgment of sentence. See Trial Court Opinion, 12/13/2, at 10-11 (concluding that Robison's Brady claim was not preserved below and is otherwise without merit; both co-conspirators "credibly testified there were no deals, promises, or implication of deals for their testimony" and the Commonwealth reiterated that no promises were made during its closing); at 11-16 (finding claim regarding text messages waived for vagueness or otherwise without merit; given the other overwhelming evidence of guilt, the prejudice to Robison was de minimus and, if error occurred, it was harmless); at 16-17 (concluding claim regarding failure to give cautionary instruction was without merit; trial counsel agreed that such an instruction would emphasize the evidence); at 17-18 (explaining that a claim of trial counsel's ineffectiveness generally must await post-conviction review; alternatively trial counsel had no basis to move for mistrial); at 18-19 (rejecting claim involving Commonwealth's closing argument because the Commonwealth did not specifically reference the challenged text message); at 19 (concluding claim involving improper jury instructions waived for vagueness; Robison did not identify any specific instruction in his Rule 1925(b) statement and trial counsel did not object to any part of the trial court's jury instructions); at 19-28 (finding ample evidence to reject Robison's sufficiency challenge as to each conviction); at 28-29 (explaining that generic assertions of Commonwealth's misconduct in the presentation of evidence is waived for vagueness or otherwise refuted by the record); and at 29-30 (concluding Robison's challenge to the weight of the evidence was either waived for vagueness or without merit; the jury's guilty verdicts did not shock one's sense of justice).
The parties are directed to attach Judge Brabender's February 3, 2022, opinion to this memorandum in any future appeal.
Judgment of sentence affirmed.
Judgment Entered.
COMMONWEALTH OF PENNSYLVANIA
v.
JAKWARIS ROBISON, Appellant
CRIMINAL DIVISION
No. 716-2020
OPINION
Daniel J. Brabender, Jr., Judge
This matter is before the Court on Appellant's counseled Notice of Appeal filed June 28, 2021 from the judgments of sentence imposed on April 23, 2021. For the reasons set forth below, the judgments of sentence should be affirmed.
A hybrid Notice of Appeal was filed on June 24, 2021.
FACTUAL AND PROCEDURAL BACKGROUND
On March 8, 2021, following a five-day trial by jury, Appellant, Jakwaris Robison, was convicted of Count One-Homicide/Murder of the Second Degree, Count Three - Conspiracy to Commit Robbery, Count Nine - Robbery, and Count Thirteen - Flight to Avoid Apprehension, Trial or Punishment. Appellant was tried with co-defendant, Marshawn Tylique Williams, who was convicted of the same offenses as Appellant. Co-defendant Williams' appeal from the judgments of sentence is pending before the Superior Court of Pennsylvania at 630 WDA 2021.
18 Pa.C.S.A. §§2502(b), 903/370 1(a)(1)(ii), 3701(a)(1)(i) and 5126(a), respectively. It is noted that the Information at Count Nine charged Robbery at 18 Pa.C.S.A. §3701 (a)(ii)(threatens another with or intentionally puts him in fear of immediate serious bodily injury). The jury was instructed on the elements of both §3701(a)(1)(i) and §3701(a)(1)(ii) (see Transcript of Proceedings, Jury Trial - Day 5, pp. 128-129.) Appellant was convicted of Robbery at §3701(a)(1)(i)(inflicts serious bodily injury upon another). At sentencing, the Court merged the sentence at Count Nine with the sentence at Count Three.
See Commonwealth v. Marshawn Tylique Williams, Erie County Docket No. 1920-2020, where on March 8, 2021, Co-Defendant Williams was convicted as follows: Count One - Homicide/Murder of the Second Degree, Count Two - Conspiracy to Commit Robbery/Robbery, Count Three - Flight to Avoid Apprehension, Trial or Punishment, and Count Four-Robbery, at 18 Pa.C.S.A. §§2502(b), 903/3701(a)(1)(i), 5126(a) and 3701(a)(1)(i), respectively.
At trial, the Commonwealth presented the testimony of approximately nineteen (19) witnesses, and introduced into the record approximately 140 exhibits, many having multiple subparts. Among the Commonwealth's witnesses were Appellant's and co-defendant Williams' coconspirators, Melissa Ann Seaman and Michael J. Toles. Neither Appellant nor Williams testified, nor did they present any witnesses. Appellant offered four (4) exhibits into the record. See Tr. Day Two, pp. 197-198, Tr. Day Four, pp. 191-192. No exhibits were introduced oh behalf of co-defendant Williams.
The convictions arose from Appellant's activities on January 19, 2020 in conspiring with co-defendant Williams and co-conspirators Seaman and Toles to arrange and engage in a drug transaction with, and robbery of the victim, Devin Way outside Way's residence at 318 Southgate Drive in the City of Erie, Pennsylvania. During the robbery, Way was shot and killed.
The relevant facts are summarized as follows.
Earlier on January 19, 2020, Seaman, Toles, and Appellant were riding as passengers in a grey, four-door Honda operated by Williams. While the group was driving around, Seaman messaged various third parties on her cell phone in an attempt to "see if anyone ha[d] any drugs or money that would be a possible lick." Transcript of Proceedings, March 3, 2021, Day 2 (Tr. Day 2), p. 62. (In their vernacular, a "lick" is a robbery victim. Tr. Day 2, pp. 62-63.) After a potential target, Cohen Heath, failed to respond, Seaman continued to reach out to others on her cell phone until she successfully made contact with the victim, Way. Way agreed to sell two (2) ounces of marijuana in exchange for $400.00. Tr. Day 2, pp. 64-65.
The four co-conspirators proceeded to the Dollar Tree store located in the Liberty Plaza. Appellant, co-defendant Williams, and Toles exited the vehicle and obtained items from the store, some or all of which were not paid for. Appellant's main purpose in going to the store was to obtain gloves to eliminate the possibility of fingerprints being left behind "in case things went bad." Transcript of Proceedings, March 4, 2021, Day 3 (Tr. Day 3), p. 93. Before the threesome returned to the car, Toles heard Appellant and Williams discuss harming Seaman "if things went bad" to prevent Seaman from saying something. Tr. Day 3, pp. 91-92.
Meantime, while Seaman waited inside the car for the three males to return, she obtained from Way his address. Tr. Day 2, p. 66. When the three returned, Seaman announced "she felt like [Way] was going to be an easy person to get at." Tr. Day 3, pp. 93-94.
At trial, Toles described the foursome's plan to rob Way:
That T was going to be in the back seat and [Appellant] would still be in the back seat and Melissa would get in the [front] passenger seat. And our plan was to get out of the car and let Devin Way in the middle and we was going to produce a gun and tell Way to get out.Tr. Day 3, p. 95.
With co-defendant Williams behind the wheel, the four proceeded to Way's residence. Way exited his home and approached the Honda. As planned, Appellant exited the back seat and instructed Way to get in the middle, next to Toles. Way refused to get in the middle, so Appellant re-entered the back seat, took the middle position, and Way got in the car after him. Way closed the car door and co-defendant Williams drove off.
Way directed Williams to turn from Southgate Drive onto Usonia Avenue. Way produced and passed around for "inspection" the marijuana for sale. However, as testified to by Seaman, no one in the vehicle actually had money on them to make the purchase. The sham inspection continued, with Seaman passing the marijuana to Williams who stated he "was good" with the marijuana, Tr. Day 2, p. 78.
Following a brief period of awkward silence, the drug transaction morphed into the planned robbery of Way. According to the testimony of co-conspirator Toles, Toles pulled out a gun, reached around Appellant, pointed the gun at Way, and instructed Way to get out of the car. Way refused and grabbed the gun. A struggle ensued between Toles and Way for the gun. Williams, from the driver's seat, called out for Appellant to assist Toles. Tr. Day 2, p. 82; Tr. Day 3, pp. 108-109. In response, Appellant squeezed out from between Way and Toles and exited the car through the driver's side rear door. Tr. Day 2, pp. 79-80; Tr. Day 3, pp. 102-106. Appellant ran to the other side of the car to the rear passenger door, opened the door, raised his gun and started shooting at Way. Tr. Day 3, p. 106.
Toles testified Appellant, the sole shooter in this incident, fired the gun four (4) to six (6) times in quick succession. Tr. Day 3, p. 117. According to Toles, Way was shot in the back. Tr. Day 3, pp. 106-118. Seaman testified she heard approximately four (4) gunshots; she heard Toles yell that he was shot, too; and when she turned around, she saw blood on Toles' leg. Tr. Day 2, pp. 85-87; 179. Seaman testified she did not see or hear from Way again. Tr, Day 2, pp. 86-87.
Toles, from his position behind the driver, Williams, observed Way turn toward Appellant, and that Appellant continued to shoot. It is apparent from Toles' testimony that after Appellant stopped firing, either Way fell out of the vehicle through the rear passenger door where Appellant was standing, or Appellant pulled Way out of the car. Regardless, Toles heard Way seream during the process. Way landed on the ground, face down in the snow. Tr. Day 3, P. 118. Appellant jumped back into thecal- through the door from which Way fell. Tr. Day 3, p. 118.
With Williams behind the wheel, the four attempted to drive away. Co-defendant Williams stopped the vehicle briefly and switched seats with Seaman so she could drive. Tr. Day 2, p. 88. Seaman, in a panic, drove the Honda into a snowbank where it became temporarily stuck. At this juncture, Appellant and Williams exited the car and started to run away. Tr. Day 2, pp. 90-92. Toles called out for Appellant to return and get Appellant's gun. Appellant complied and Toles handed him Toles' gun as well. Tr. Day 2, p. 93; Tr. Day 3, p. 120. Appellant and Williams then ran off again in the snow through someone's back yard. Tr. Day 2, p. 94; Tr, Day 3, pp. 121-22.
Seaman managed to get the car unstuck and drove back past the shooting scene. Seaman. with Toles bleeding in the back seat, drove to a nearby Taco Bell on Peach Street where the Honda was pulled over by the police. Tr. Day 2, pp. 97-98.
Appellant and co-defendant Williams left the Erie area and each was missing for quite some time.
The police identified Appellant as a suspect from surveillance video from the Dollar Tree Store in the Liberty Plaza. On January 22, 2021, a warrant was issued for Appellant's arrest. The police learned Appellant was on state parole and contacted his parole supervisor, Michelle Contis. Contis positively identified Appellant from Dollar Tree surveillance video. See Affidavit of Probable Cause. Contis provided the police with Appellant's cell phone number, which through investigation revealed he was hiding in Pittsburgh, Pennsylvania. Tr. Day 5, pp. 11-12.
On January 24, 2021, Appellant was apprehended in Pittsburgh, where he no longer was wearing the beard he had at the time of the murder. T, Day 5, pp. 11-12. At trial, as the result of the Court's ruling on a motion in limine by Appellant's counsel, no reference was made to Contis' job title, his role as Appellant's parole supervisor, or to Appellant's status as a parolee at the time of the murder.
With regard to co-defendant Williams, the evening of the shooting a warrant was issued for his arrest. Tr. Day 4, p. 97. Wanted billboards were posted by the U.S. Marshall's Fugitive Task Force in Cleveland, Buffalo, and surrounding areas. Tr. Day 4, p. 99. In July of 2020, approximately seven (7) months after Way's murder, the police located co-defendant Williams at a friend's residence in the 400 block of East 22nd Street in the City of Erie. Williams attempted to remain hidden inside the residence but eventually surrendered to the police. Tr. Day 4, p. 104.
On April 23, 2021, Appellant was sentenced to life without parole followed by an aggregate of twelve (12) to twenty-four (24) years of incarceration as follows:
Count One: Homicide/Murder of the Second Degree - life imprisonment without parole;
Count Three: Conspiracy to Commit Robbery - ten (10) to twenty (20) years of incarceration, consecutive to Count One;
Count Nine: Robbery - Merged with Count Three; and
Count Thirteen: Flight to Avoid Apprehension, Trial or Punishment - two (2) to four (4) years of incarceration, consecutive to Count Three.
The Sentencing Order inaccurately reflects that Count Three is Robbery when in fact, Count Three is canspiracy Commit Robbery 18 Pa.C.S.A. §903/3701(a)(1)(ii). Applnt was charged at count three with conspiracy to Commit Robbery (See Information); the Court instructed the jury as to the elements of this offense (see Transcript of proseedings, jury Trial day 5, pp. 124-129) and the Verdict Slip reflects the conviction is for conspiracy to Commit Robbery. Appellant was sentenced at Count Three for Conspiracy to Commit Robbery/Robbery (See Transcript of Proceedings. Sentencing Hearing, p. 42).
On April 28, 2021, Appellant filed a post-sentence motion seeking relief of arrest of judgment or a new trial. Appellant averred: 1) the verdict was against the weight of the evidence as to whether Appellant committed the shooting, and 2) the evidence was insufficient to sustain the verdict with regard to whether Appellant was a co-conspirator or accomplice. See Post-Sentence Motion. On May 17, 2021, the Commonwealth filed a response to the post- sentence motion, asserting; 1) the evidence established Appellant was the shooter, and 2) the evidence of Appellant's actions before and after the shooting amply established Appellant conspired with co-defendants to rob the victim. See Commonwealth's Response to the Defendant's Post-Sentence Motion. On May 27, 2021, the Court denied the post-sentence motion.
On June 24, 2021, Appellant filed a pro se/hybrid Notice of Appeal.5 On Monday, June 28, 2021, Appellant's trial counsel, Erie V. Hackwelder, Esq., filed a Notice of Appeal. On July 1, 2021, trial counsel filed a Motion to Withdraw Appearance. On July 2, 2021, the Court granted the motion. Concurrently, the Court appointed Michael W. Harmon, Esq., as appellate counsel and issued a 1925(b) Order directing Appellant to file a 1925(b) Statement of Matters Complained of On Appeal in twenty-one (21) days. The Order directed any issue not properly included in the Statement timely filed and served would be deemed waived. See 1925(b) Order.
On July 21, 2021, the undersigned requested of the Superior Court of Pennsylvania an extension of the original record due date until September 21, 2021, inasmuch as trial transcription was not complete. On July 22, 2021, Appellant filed, a Motion for Extension of Time to file the Rule 1925(b) Statement for the same reason. On July 27, 2021, the Court granted the motion. On August 16, 2021, Appellant requested a further extension of time to file a 1925(b) Statement. On August 27, 2021, the Court granted the motion and directed Appellant to file the 1925(b) Statement in twenty-one (21) days. On August 30, 2021, Appellant filed a 1925(b) Statement of Matters Complained of on Appeal.
In response to an "Application for Special Relief filed by Attorney Harmon, on October 8, 2021, the Superior Court directed the undersigned to conduct a Grazier hearing and ensure
Appellant was provided with ail materials necessary to prosecute the appeal if Appellant satisfied the appropriate standard. See Per Curiam Order of October 8, 2021 at 741 WDA 2021. On November 8, 2021, a Grazier hearing was held. The Court determined Appellant's waiver of counsel was knowing, voluntary, and intelligent, and permitted Appellant to proceed pro se. A waiver of counsel form was filed.
On November 8, 2021, the Court directed Appellant to file an amended 1925(b) Statement in forty-five (45) days, by December 23, 2021. On November 8, 2021, with the intention of ensuring Appellant received all materials necessary to prosecute the appeal, the Court, inter alia, directed Attorney Harmon to provide Appellant with transcripts of proceedings, and directed the Clerk of Courts to supply Appellant with copies of any requested materials of record. On November 15, 2021, Attorney Harmon filed a Notice of Compliance. The Clerk of Courts subsequently notified the Court it supplied Appellant with copies of all materials of record.
Oh December 16, 2021, Appellant, pro se, filed an Amended 1925(b) Statement of Matters Complained of On Appeal listing sixteen claims, Paraphrased and reordered for clarity, Appellant presents the following claims:
1. Whether the Commonwealth committed Brady violations in a) withholding alleged "cooperation agreements" between the Commonwealth and Michael Toles and Melissa Seaman; (See Amended 1925(b) Statement, ¶1) and b) withholding unspecified “exculpatory/impeachable evidence" regarding Michael Toles' cooperation in another homicide case/investigation (See Amended 1925(b) Statement, ¶2).
2. Whether abuse of discretion occurred in allowing evidence of unspecified "texting/telephonic messages between appellant and an unknown subject pertaining to an unrelated matter the prior day" See Amended 1925(b) Statement ¶¶3, 4; and 5.
3. Whether abuse of discretion occurred in "not providing] the jury with a cautionary instruction regarding the (sic) Pa.R.E. 404(b) after the Trial Court
determined that the probative value of "the evidence" did not outweigh its potential for unfair prejudice." See Amended 1925(b) Statement, ¶6
4. Whether counsel was ineffective in failing to move for mistrial "after the Trial Court determined ... the probative value of the evidence involving texting/telephonic messages between appellant and an unknown subject pertaining to an unrelated matter the prior day, did not outweigh its potential for unfair prejudice...." See Amended 1925(b) Statement, ¶7.
5. Whether abuse of discretion occurred in "allowing" the Commonwealth to reference texting/telephonic messages during closing argument "even after .... the trial court ruled that the texting/telephonic messages between appellant and an unknown subject pertaining to an unrelated matter the prior day was prejudicial to appellant..." See Amended1925(b) Statement, ¶8.
6. Whether abuse of discretion occurred "by giving improper jury instructions". See Amended 1925(b) Statement, ¶9.
7. Whether the evidence was sufficient to convict as to each conviction. See Amended 1925(b) Statement, ¶¶10, 13, 11, 12, and 10.
11. Whether abuse of discretion occurred in "allowing" the Commonwealth to: a) "Vouch or Bolster for witnesses", b) "Comment on defendants silence", and c) "misstate and misuse evidence and facts throughout appellant's trial. See Amended 1925(b) Statement, ¶15.
12. Whether abuse of discretion occurred in denying the post-sentence motion claim the verdict was against the weight of the evidence. See Amended 1925(b) Statement, ¶6.The issues will be addressed ad seriatim.
DISCUSSION
I. Brady Violations Claims (See Amended 1925(b) Statement, ¶¶1, 2)
In the 1925(b) Statement, Appellant asserts the Commonwealth committed Brady violations in a) withholding alleged "cooperation agreements" between the Commonwealth and Michael Toles and Melissa Seaman; (See Amended 1925(b) Statement, ¶1), and b) withholding unspecified "exculpatory/impeachable evidence" regarding Toles' cooperation in another homicide case/investigation (See Amended 1925(b) Statement,¶2). The claims are meritless and must be dismissed.
As indicated previously herein, Michael Toles and Melissa Seaman, co-conspirators with Appellant and co-defendant Mars.hawh Williams in the plan to rob victim Devin Way of marijuana, testified on behalf of the Commonwealth at the trial of Appellant and Williams. Melissa Seaman testified on Day Two of the trial, and Michael Toles testified on Day Three. See generally, Tr. Day 2, pp. 43-266 and Tr. Day 3, pp. 74-197, respectively. Seaman and Toles testified that their participation as co-conspirators in the events which led to Way's death constituted second degree murder. See Tr. Day 2, p. 100; Tr. Day 3, p. 141. Seaman and Toles each steadfastly denied ever discussing with the Commonwealth a plea deal with regard to their testimony, and what was going to happen to each after the trial of Appellant and Williams. See Tr. Day 2, pp. 149, 193-198, 202-204, 208, 240, and 243; Tr. Day 3, pp. 128-129, 141-142, and 175, Toles acknowledged cooperating with the Commonwealth in a separate criminal matter; but the record does not reflect any indication the Commonwealth promised, or Toles understood or believed, he would receive favorable consideration for that cooperation. See Tr. Day 3. pp. 190-191.
The issues are waived. Appellant failed to preserve the Brady claims. It is fundamental an appellant cannot raise an issue for the first time on appeal. Pa.R.A.P. 302(a). In general, raising an issue for the first time in a concise statement of errors complained of on appeal does not preserve the issue. See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287 (Pa. Super. 2004); see also Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 430 (Pa. Super. 2002) ('• Even though a 1925(b) statement raises issues before the trial court first, an issue must have been otherwise preserved for the trial court to consider that issue.") Here, Appellant raises his Brady claims (for the first time in the Amended 1925(b) Statement of Matters Complained of on Appeal tiled December 16, 2021. Appellant did not raise a Brady claim in the Pre-Trial Motion filed October 2, 2020; in the motion in limine to exclude evidence filed February 1, 2021; or the motion in limine filed March 8, 2021 after the trial began. Appellant did not raise a Brady claim in the post-sentence motion of April 28, 2021. Therefore, Appellant has waived the issue.
Assuming arguendo the issue is not waived, there is no basis in the record the Commonwealth committed a Brady violation. On direct examination and during extensive cross-examination of each witness, both Seaman and Toles consistently denied there was any implication, promise or understanding the government would extend leniency: in exchange for the testimony of either witness. There is no evidence the prosecution suppressed any such evidence, either willfully or inadvertently. See Commonwealth v. Bagnali, 235 A.3d 1075 (Pa. 2020). On direct examination of each witness, the Commonwealth directly confronted the issue. and on cross-examination, each witness was strenuously questioned on the topic. Both witnesses credibly testified there were no deals, promises, or implications of deals for their testimony. During closing argument, the Commonwealth reiterated the testimony of Toles and Seaman that no promises were made in their eases. See Tr. Day 5. p. 93. The claims are without any basis in fact, and must be dismissed.
II. Evidentiary Claim; Text Messages (See Amended 1925(b) Statement, ¶¶3, 4, and 5).
In the 1925(b) Statement, Appellant asserts abuse of discretion occurred in allowing the introduction in evidence of "texting/telephonic messages between appellant and an unknown subject pertaining to an unrelated matter the prior day." Paraphrased, Appellant essentially asserts error occurred because a) the prejudicial value of the evidence outweighed its probative value; and b) the evidence was "prior bad act" evidence admitted without notice to the defense and without a hearing per Pa.R.E. 404(b); and the evidence was "inadmissible propensity evidence". (See Amended 1925(b) Statement, ¶¶3, 4, and 5).
The claim is waived as vague. Assuming arguendo the claim is not deemed waived, it is without merit. Moreover, if any error occurred, it was harmless error in view of the totality of the evidence.
A. Claim Waived As Vague
The claim is waived as vague. In the Amended 1925(b) Statement, Appellant fails to specify the text message(s) and/or telephone message(s) to which he refers and provides no context or reference to the record where or when alleged error occurred during the lengthy trial. Appellant failed to identify when during the trial or at least during whose testimony the "text/telephone messages" were introduced. Thus, the Court is left to scour the lengthy record for a place where a text or social media message may have been introduced, an onerous and time-consuming task.
It is fundamental a concise statement too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Id. If a concise statement is too vague, the court may find waiver. Id.
Appellant's vague claim of evidentiary error with regard to unspecified "text/telephone messages" does not contain enough information for the Court to adequately address it. Therefore, the claim is waived as vague. See Pa.RA.P. 1925(b)(4)(H), (vii),
B. Legal Standards and Discussion
Assuming arguendo the claim is not deemed waived, it is without merit. Moreover, if any error occurred, it was harmless error in view of the overwhelming evidence of Appellant's guilt.
1. Legal Standards
The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. Commonwealth v. AntidormL 84 A.3d 736, 749 (Pa. Super. 2014).
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.Commonwealth v. Antidormi, 84 A.3d at 749 (internal citations and quotation marks omitted).
Except as otherwise provided by law, all relevant evidence is admissible. Pa.R.E. 402.
The threshold inquiry with admission of evidence is whether the evidence is relevant. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference Or presumption regarding the existence of a material fact.Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (internal citations and quotation marks omitted). Relevant evidence is that which has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. See Pa.R.E. 401.
In addition, evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact. Stokes, 78 A. 3d at 654. Stated similarly, the Court may exclude relevant evidence if its probative value is outweighed by a danger of unfair prejudice. See Pa.R.E. No. 403. Pa.R.E. 403. Notably, evidence is not unfairly prejudicial simply because it may be harmful to the defendant's case. All relevant Commonwealth evidence is meant to prejudice a defendant. See Commonwealth, v. Gonzalez, 112 A.3d 1232, 1238 n.6 (Pa. Super 2015). Thus:
[e]vidence is not unfairly prejudicial simply because it is harmful to the defendant's case. The trial court is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand. Exclusion of evidence on the grounds that it is prejudicial is limited to evidence so prejudicial that it would inflame the jury to make a decision based on something other than the legal propositions relevant to the case.Commonwealth v. Flamer, 53 A.3d 82, 88, n. 7 (internal quotations and citations omitted).
Once it is determined that error occurred in admitting the evidence, the inquiry becomes "whether the appellate court is convinced beyond a reasonable doubt that such error was harmless." Stokes, 78 A.3d at 654 (citing Robinson, 721 A.2d at 350 (Pa. 1998)), Harmless error occurs where:
(1) the error did not prejudice the defendant or the prejudice was-de minimis; (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.Stakes. 78 A.3d at 654 (citing Robinson, 721 A.2d at 350 (Pa. 1998)).
2. Discussion
Assuming arguendo the claim is not waived for vagueness, the Court is left to speculate Appellant refers to ah objection by Appellant's trial counsel on Trial Day 4 concerning text messages between Appellant and an unknown third party discussing plans of potential robberies the day before the murder. Tr. Day 4, pp. 39-42. A description follows.
During direct examination of City of Erie Police Detective Patrick Ginkel, the Commonwealth introduced text messages sent from Appellant Robison's phone to an unknown third person the day before the instant offense. Tr. Day 4, pp. 35-44. The conversation involved plans for Appellant to potentially plan a separate robbery at Presque Isle Downs & Casino. Tr, Day 4, p. 37. Appellant's trial counsel objected to introduction of the text messages on the basis of relevance. The Commonwealth's position was the evidence was relevant because it tended to establish Appellant's activities in searching for robbery victims the day before Way was robbed and shot. Tr. Day 4, pp. 40-41. The Court agreed and overruled the objections. Tr. Day 4, pp. 40, 42. Thereafter, Commonwealth witness Detective Ginkle briefly testified to the messages, and spent the majority of the time explaining the meaning of certain street terms and jargon contained within the texts. Tr. Day 4, pp. 42-45.
The next morning, Appellant's trial counsel filed a Motion in Limine to prevent further mention of the text messages. The Court granted the motion. Tr. Day 5, pp. 10-11. Essentially, the Court determined the evidence had been properly admitted but that further probing into it/that area would be prejudicial. Tr. Day 5, pp. 10-12. The Court determined the Commonwealth had achieved its purpose through other witnesses, and disallowed further reference to the text messages. Further, in addressing the motion in limine and additional proposed points for charge submitted by Appellant's counsel, the Court considered whether it would be appropriate to issue a cautionary instruction to the jury. The Court determined the standard instruction on the conflicts and the testimony would suffice. TV. Day 5, pp. 11-12. The following exchange occurred:
MR. LIGHTNER [the Commonwealth]: Your Honor, just so - - I'm not arguing the point, but your ruling is[,] it's appropriately come in but we're not going to visit it again.
THE COURT: Right. And I think at this point it may be more harm to give a cautionary instruction.
MR. HACKWELDER [Appellant's counsel]: Understood, Judge. 1 agree. Thankyou.
THE COURT: So, I won't do that, but I will grant your motion.
MR. HACKWELDER [Appellant's counsel]: Understood, Your Honor. Thank you.Tr. Day 5, p. 12 (emphasis added). There was no further testimony of the text messages, and no reference was made to them during closing arguments.
There was no error in admitting the messages. When the messages were admitted, the trial was nearly over and only closing arguments remained. The messages were not reintroduced before the Motion in Limine was granted. At best, the initial admission of the text messages was harmless error. Any prejudice to Appellant was de minimis. Counsel agreed a cautionary instruction was not in Appellant's best interest. Further, the properly admitted and uncontradicted evidence of Appellant's guilt was so dvenvhelmihg and any prejudicial effect of the alleged error was so insignificant by comparison that the alleged error could not have contributed to the verdict. This evidentiary claim is wholly without merit and must be dismissed.
III. No Cautionary Instruction Regarding Text Messages (See. Amended 1925(b) Statement,
At paragraph no. 6 of the Amended 1925(b) Statement, Appellant asserts abuse of discretion and violation of Appellant's Due Process rights occurred when the Court "did not provide the jury with a cautionary instruction regarding the Pa.R.E. 404(b) after the Trial Court determined that the probative value of the evidence did not outweigh its potential for unfair prejudice." (See Amended 1925(b) Statement, %6)(empkasis added). "The evidence" to which Appellant refers is unclear. By inference, and in the context of the preceding claims of the
Amended 1925(b) Statement, it appears the evidence to which Appellant refers at paragraph no. 6 is the text messaging referenced at paragraph nos. 3, 4, and 5 of the Amended 1925(b) Statement. If so, it appears Appellant's claim at paragraph no. 6 is that abuse of discretion occurred when the Court declined to give a cautionary instruction after it determined there would be no further testimony regarding the text messages.
This issue has already been addressed in the immediately preceding paragraphs of this Opinion. At trial, the Court considered whether to issue a cautionary instruction regarding the text messages. The Court determined a cautionary instruction might do more harm than good. Appellant's counsel agreed. See Tr. Day 5, pp. 10-12. The potential for prejudice from the evidence up to that point was slight, and a cautionary instruction may have merely emphasized it in the minds of the jurors. No abuse of discretion in this regard occurred. The claim is wholly witiiout merit and must be dismissed.
IV. Ineffective Assistance - No Motion for Mistrial
Paraphrased, at paragraph no. 7 of the Amended 1925(b) Statement, Appellant asserts trial counsel was ineffective for failure to move for a mistrial after the Court granted trial counsel's motion in limine to preclude further reference to the "texting/telephonic messages between [A]ppellant and an unknown subject pertaining to an unrelated matter the prior day" (these presumably being the same text messages referenced at paragraph nos. 3-6 of the Amended 1925(b) Statement). SeeAmended 1925(b) Statement, |7. Ineffective assistance of counsel claims are typically raised during post-conviction collateral proceedings. Assuming arguendo the claim is appropriate at this stage, it is meritless and must be dismissed.
Pa.R.Crim.P. 605 governing mistrials provides in pertinent part:
B. When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.Pa.R.Crim.P. 605(B)(emphasis added). Trial counsel's failure to move for a mistrial after the court granted trial counsel's motion in limine does not constitute ineffective assistance where there would have been no arguable merit to such a motion. See Commonwealth v. Brinkley, 480 A.2d 980 (Pa. 1984). A trial court is required to grant a mistrial only where the alleged prejudicial event may reasonably be said to have deprived the defendant of a fair and impartial trial. Id., at 986 (emphasis added).
As previously discussed, on March 8, 2021, Day 5 of trial, Appellant's counsel presented a motion in limine to preclude the Commonwealth from making further reference to the subject text messaging. The motion was addressed on the record in chambers. Tr. Day 5, pp. 10-12. The Court granted the motion. Id. Therefore, there was no basis for a mistrial motion. Hence, there was no ineffective assistance of counsel on mis basis. The claim must be dismissed.
V. Claim of Abuse of Discretion ("allowing" Commonwealth during closing argument to reference text messages between Appellant and unknown subject the prior day) and Related Claim of Prosecutorial Misconduct (See Amended 1925(b) Statement, ¶8).
In the Amended 1925(b) Statement, Appellant asserts abuse of discretion occurred "by allowing the Commonwealth to ref (sic) to [text] messages during closing argument between [A]ppellant and an unknown subject pertaining to an unrelated matter the prior day." Appellant also claims the Commonwealth, engaged in prosecutorial misconduct by referring to the texts during closing argument. See Amended 1925(b) Statement, ¶8.
The claims are belied by the record. During closing argument, the Commonwealth made no comment about text messages between Appellant and an unknown third party the day prior to the events resulting in the death of Devin Way. The claims are meritless. See Tr. Day 5, pp. 71-109.
VI. "Improper Jury Instructions" (See Amended 1925(b) Statement, ¶9).
In the Amended 1925(b) Statements Appellant asserts, "[f]he Trial Court erroneously abused its discretion by giving improper jury instructions" thereby violating Appellant's right to a fair trial. See Amended 1925(b) Statement, ¶9.
The claim is waved as vague. Appellant fails to identify any jury instruction that was allegedly improper. Appellant fails to concisely identify any error in instructing the jury with sufficient detail to identify the issue to be raised for the Court. During points for charge, no objections were lodged. In one instance, the Commonwealth requested clarification of a matter and the Court complied. See Tr. Day 5, pp. 109-139; pp. 137-139. Due to complete lack of specificity, the Court is unable to address the broad and boilerplate claim. It is waived as vague. See Pa.R.A.P. 1925(b)(4)(H), (vii).
VII. Sufficiency of the Evidence (See 1925(b) Statement, ¶ 10-14).
In the Amended 1925(b) Statement, Appellant challenges the sufficiency of the evidence for the convictions. (See Amended 1925(b) Statement, ¶¶ 10, 11, 13 and 14).
At paragraph no. 12, Appellant also challenges the sufficiency of the evidence for Robbery at 18 Pa.C.S.A. §3701(a)(1)(ii). Though Appellant was not convicted separately of Robbery at §3701(a)(1)(ii), he was convicted at Count three of Conspiracy to Commit Robbery/Robbery at 18 Pa.C.S.A. §§903/370l(a)(1)(ii).
As indicated previously, the Sentencing Order inaccurately reflects that Count Three is Robbery when, in fact, the conviction at Count Three is for Conspiracy to Commit Jlobbery, 18 Pa.C.S.A, §§903/370 1(a)(1)(ii), as charged in the information. A Corrected Sentencing Order will be filed with the Clerk of Courts.
Based upon the applicable legal standard, Appellant's sufficiency of the evidence claims are meritless and must be dismissed.
A. Sufficiency of the Evidence Standard
When evaluating a challenge to the sufficiency of the evidence, the Court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, together with all reasonable inferences from that evidence, the trier of fact could have found each element of the crime charged was established beyond a reasonable doubt. Commonwealth v. Hargrove, IAS A.3d 20, 22 (Pa. Super. 2000), appeal denied, 760 A.2d 851 (Pa. 2000)(internal citations omitted); Commonwealth, v. Brunson, 938 A.2d 1057, 1058 (Pa. Super. 2007); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Hopkins, 1A1 A.2d 910, 913 (Pa. Super. 2000). The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence* and any questions or doubts are to be resolved by the fact-finder, unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Hopkins, supra at 913-14.
B. Factual Basis, Elements of the Crimes and Discussion
1. Count One: Homicide/Murder of the Second Degree. 18 Pa.C.S.A. §2502(b). (See 1925(b) Statement,¶10).
At paragraph 10 of the Amended 1925(b) Statement, Appellant avers the Commonwealth failed to sufficiently establish a) Appellant is vicariously liable for Way's death, caused Way's death, or is liable for Way's death under accomplice or conspirator liability; b) Appellant killed or caused Way's death while committing, attempting, fleeing after committing or attempting a felony; and c) Appellant acted with malice.
a. Factual Basis and Elements
The factual basis for the charge of Homicide/Murder of the Second Degree is that on or about January 19, 2020 at Southgate Drive and Usonia Avenue in Erie, Pennsylvania, Appellant directly or indirectly by virtue of his complicity, intentionally and with malice aforethought was an accomplice in the commission of robbery and thereby caused the death of Devin Way. See Information
Murder is classified as one type of Criminal Homicide. See 18 Pa.C.S.A. § 2501(b). Criminal homicide is committed when a person "intentionally, knowingly, recklessly, or negligently causes the death of another human being." 18 Pa.C.S.A. § 2501(a). Homicide is murder of the second degree "when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa. C.S.A. § 2502(b).
The felony offense of Robbery at 18 Pa.C.S.A, §3701 (a)(1)(i) occurs where a person who, in the course of committing a theft, inflicts serious bodily injury upon another. 18 Pa.C.S.A. §§3701(a)(1)(i), 3701(b). The felony offense of Robbery at 18 Pa.C.S.A. §3701 (a)(l)(ii) occurs where a person in the course of committing a theft threatens another with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa.C.S.A. §§3701 (a)(1)(H); 3701(b).
An act occurs "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission of theft. 18 Pa. C. S.A. §3 701 (a) (2).
b. Discussion
Viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to find the Commonwealth met its burden of proof in establishing Appellant committed Homicide/Murder of the Second Degree. The Commonwealth took the position at trial Appellant was the shooter who inflicted the mortal wounds upon Way. The alternate theory of responsibility was Appellant Robison was an accomplice and co-conspirator in the robbery of Way and, since Way died in the commission of felony robbery, Appellant was guilty of second degree murder.
It is apparent from, the testimony that Appellant was the shooter who inflicted the fatal wounds. Regardless, there is no doubt the record sufficiently established Appellant was a principal or accomplice in the perpetration of the robbery of Way, and Way was killed in the course of the robbery. The evidence was sufficient to establish Appellant committed Homicide/Murder of the Second Degree. The claim is wholly without merit.
2. Count Three: Conspiracy to Commit Robbery, 18 Pa.C.S. A. §903/370 1(a)(1)(ii). (See 1925(b) Statement, ¶13).
At paragraph 13 of the Amended 1925(b) Statement, Appellant asserts the Commonwealth failed to sufficiently prove he a) intended to commit or aid in the commission of a crime; b) entered into an agreement; c) an overt act was committed in furtherance of the agreed-upon crime; d) he was a co-conspirator or accomplice to the robbery; and e) that he "was even aware" Michael Toles was armed.
a. Factual Basis and Elements
The factual basis for the charge of Conspiracy to Commit Robbery is that on or about January 19, 2020, Appellant, with the intent of promoting or facilitating robbery, agreed with Melissa Ann Seaman and/or Marshawn T. Williams and/or Michael J. Toles to engage in conduct which constitutes robbery or an attempt or solicitation to commit robbery, and in furtherance thereof conspired with co-defendant Williams and co-conspirators Seaman and Toles to arrange for a drug transaction and take items from Devin Way by force with a gun and shot and killed Way at South Gate Drive and Usonia Avenue in Erie, Pennsylvania. See Information.
Criminal Conspiracy at 18 Pa.C.S.A. §903(a)(1) is defined as:
(a) Definition of conspiracy.- A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime.18 Pa.C.S.A. § 903(a)(1). A conspiracy is given the same grade and degree as the most serious crime that is an object of the conspiracy. 18 Pa. CS.A. § 905(a).
To sustain a conviction for criminal conspiracy, the Commonwealth must establish the defendant: 1) entered into an agreement to commit or aid in an unlawful act with another person or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the conspiracy.
Circumstantial evidence may provide proof of the conspiracy The conduct of the parties and the circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Additionally: [a]n agreement can be inferred from a variety of circumstances including, but not limited to the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail.
Furthermore, flight, along with other circumstantial evidence, supports the inference of a criminal conspiracy.Commonwealth v. Define, 26 A.3d 1139, 1147 (Pa. Super. 2011)(intimal citations and quotations marks omitted).
Felony first degree Robbery occurs when "in the conrse of committing a theft, [a person]: (0 inflicts serious bodily injury upon another; (ii) threatens another with or intentionally puts Mm in fear of immediate serious bodily injury; [or] (hi) commits or threatens immediately to commit any felony of the first or second degree." 18 Pa.CSA. § 3701(a)(1)(i), (a), (m),
b. Discussion
Viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to find the Commonwealth met its burden of proof in establishing Appellant committed Conspiracy to Commit Robbery.
Direct and circumstantial evidence established the elements of this crime, including: the conduct of Appellant while a fellow-passenger with co-conspirators Seaman and Tdles in the Honda operated by co-defendant Williams; conversations between Appellant and vehicle OCCUpantS while inside the Honda; Appellant's conversation with co-defendant Williams in the vicinity of the Dollar Tree Store about what to do with Seaman "in case things went bad" and Appellant's desire to purchase rubber gloves to avoid leaving behind fingerprints; Appellant's role in exiting the Honda when Way approached the vehicle and instructing Way to get in the middle of the back seat; Appellant's response to the urging of co-defendant Williams for Appellant to assist Toles as Toles struggled with Way in the back seat; Appellant's actions in exiting the vehicle and going around to the other side, pointing a gun at Way and shooting him; Appellant's actions in getting back inside the vehicle after Way either fell out, or was ejected from the vehicle, or pulled out onto the ground; Appellant's actions in attempting to leave the scene in the Honda with the others after Way was shot; Appellant's actions in fleeing from the vehicle after it became stuck in the snow; his actions in returning for his gun and Toles' gun and then running off again with Williams in the snow through someone's back yard; and Appellant's actions in subsequently leaving the Erie area and eventually hiding in Pittsburgh where he was finally apprehended.
The evidence sufficiently established a conspiratorial agreement to commit robbery beyond a reasonable doubt. The claim is baseless and must be dismissed.
3. Count Nine: Robbery, 18 Pa.C.S.A. §3701(a)(1)(i). (See 1925(b) Statement ¶11)
At paragraph no. 11 of the Amended 1925(b) Statement, Appellant alleges the Commonwealth failed to sufficiently establish a) Appellant was vicariously liable for inflicting serious bodily injury upon the victim; and b) Appellant inflicted serious bodily injury upon the victim, Way, while Appellant was committing a theft, attempting to, or fleeing after committing or attempting to commit a theft.
a. Factual Basis and Elements
The factual basis for the charge of Robbery is that on or about January 19, 2020 in the area of Southgate and Usonia Avenue in Erie, Pennsylvania, Appellant, conspired with Co-Defendant Williams and Seaman and Toles to arrange a drug transaction and take items from Way by force with a firearm and shot Way, killing him. See Information.
Robbery as a first degree felony occurs when "in the course of committing a theft, [a person]: (i) inflicts serious bodily injury upon another; (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; [or] (iii) commits or threatens immediately to commit any felony of the first or second degree." 18 Pa.C.S.A. § 3701(a)(1)(i), (ii), (iii).
b. Discussion
As noted previously herein, though Appellant was charged at Count Nine with felony Robbery at 18 Pa.C.S.A. §3701(a)(ii)(threatens another with or intentionally puts him in fear of immediate serious bodily injury), the jury was instructed on the elements of both §3701(a)(1)(ii) and §3701(a)(1)(i)(inflicts serious bodily injury upon another) since the victim was shot during the commission of the robbery and died. Appellant was convicted of Robbery at §3701(a)(1)(i). See Transcript of Proceedings, Jury Trial - Day 5, pp. 128-129.
Viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to find the Commonwealth established Appellant committed Robbery at §3701(a)(1)(i).
The record sufficiently established Appellant engaged in a plan to lure Way into the Honda for the ostensible purpose of purchasing from Way two (2) ounces of marijuana for $400.00, and once Way was inside the car, to rob him. In the course of committing the theft, Toles pointed a gun at Way and a struggle ensued. As this occurred, co-defendant Williams called out for assistance for Toles. Appellant responded by exiting the vehicle and shooting Way, ultimately killing him. Williams initially attempted to drive off. After the vehicle became stuck and the guns were retrieved from the vehicle, Appellant and Williams ran off. At a minimum, Appellant's actions and words intentionally placed Way in fear of immediate serious bodily injury during the commission of the robbery. See § 3701(a)(1)(ii). In the course of committing theft, serious bodily injury leading to death Occurred. See § 3701(a)(1)(i). In the course of committing theft, Way was shot and killed. See § 3701(a)(1)(iii). The claim must be dismissed. The elements at § 3701(a)(1)(i) were met.
4. Count Thirteen - Flight to Avoid Apprehension, Trial or Punishment 18 Pa.C.S.A. § 5126(a), (See 1925(b) Statement, ¶14).
At paragraph no. 14 of the Amended 1925(b) Statement, Appellant avers the Commonwealth failed to sufficiently establish a) Appellant willfully moved or traveled within or outside the Commonwealth; b) he did so with intent to avoid apprehension, trial, or punishment; and c) Appellant was involved in a crime.
a. Factual Basis and Elements
The factual basis for the charge of Flight to Avoid Apprehension, Trial or Punishment is that on or about January 19, 2020 in the area of Southgate and Usonia in Erie, Pennsylvania, Appellant willfully concealed himself or moved or traveled within of outside the Commonwealth with the intent to avoid apprehension, trial or punishment, in that Appellant fled from the police to avoid apprehension. See Information.
The offense of Flight to Avoid Apprehension, Trial or Punishment graded as a third degree felony is defined as follows:
(a) Offense defined. - A person who willfully conceals himself or moves or travels within or outside this Commonwealth with the intent to avoid apprehension, trial or punishment commits a felony of the third degree when the crime which he has been charged with or has been convicted of is a felony....18 Pa.C.S.A. -§5126(a) It is sufficient for the defendant to intentionally elude law enforcement to avoid apprehension, trial or punishment on a charge or conviction, and where the charge of conviction is a felony, the flight to avoid apprehension charge is properly graded as a felony of the third degree. See Commonwealth v. Stefjy, 36 A.3d 1109, 1112. (Pa. Super. 2012).
b. Discussion
Viewing the evidence in the light most favorable to the Commonwealth, there was sufficient evidence to find the Commonwealth met its burden of proof in establishing Appellant engaged in Flight to Avoid Apprehension, Trial or Punishment. The evidence at trial sufficiently established Appellant intentionally eluded law enforcement to avoid apprehension after "Way was shot.
The evidence established Appellant initially attempted to leave the scene in the Honda after Way was shot. After the car became stuck in the snow, Appellant exited it and ran off in the with Williams; when Toles called out for Appellant to get his gun, Appellant returned to the car, grabbed his gun and Toles' gun, and took off again on foot with Williams in the snow through someone's back yard. The evidence is uncontradicted Appellant fled the scene of the crime. Through subsequent investigation the police learned Appellant was hiding in Pittsburgh, Pennsylvania. On January 24, 2021, Robison was apprehended in Pittsburgh, where he no longer sported the beard he had at the time of the murder. This claim is wholly without merit and must be dismissed.
VIII. Miscellaneous Claims: Abuse of Discretion in "Allowing" Commonwealth to: Vouch or Bolster for Witnesses, Comment on "Defendants'' Silence, and Misstate or Misuse Evidence (See 1925(b) Statement ¶15).
At paragraph no. 15 of the Amended 1925(b) Statement, Appellant baldly claims abuse of discretion occurred in allowing the Commonwealth to "[v]ouch or [b]olster for witnesses", to "[c]omment on "defendants silence", and "misstate and misuse evidence and facts" during trial. Appellant fails to explain what he means, he fails to point to where in the record the alleged error(s) occurred, he fails to point to where in the record an objection to any item of this sort was preserved, and he provides no specific example of an instance of such an occurrence. The miscellaneous claims are waived as the Court does not have enough information to adequately address them. Where such bald claims are presented, the Court is not required to guess at what an Appellant refers to and the claims are deemed waived for vagueness. See Pa.R.Crim.P. 1925(b)(4)(ii)(vii).
Moreover, the generic claims are belied by the record. Review of closing arguments reveals the prosecution did not improperly comment on the failure of Appellant or his co-defendant, Marshawn Williams, to take the stand. The Court instructed the jury the Commonwealth bore the burdens of proof, the jurors were the arbiters of the credibility of witnesses, and the defendants had an absolute right not to testify and no adverse inference was to be made from the absence of their testimony or presentation of evidence or witnesses. Tr. Day 5, pp. 109-112; 119-120.
These bald, miscellaneous claims are waived. Moreover, they are belied by the records
IX. Weight of Evidence Claim (See 1925(b) Statement, ¶16).
At paragraph no. 16 of the Amended 1925(b) Statement, Appellant avers error occurred in denying the Motion for a New Trial which averred the verdict was against the weight of the evidence because "the rationale for upholding the verdict contained statements/evidence ..., totally contradicted by the record."
A. Waiver
As an initial matter, the bald weight claim is waived as vague. No particulars or examples are given as to the basis for the claim. The Court is not required to guess as to what evidence is allegedly "contradicted by the record." See Pa.R. Crim.P. 1925(b)(4)(ii), (vii),
B. Weight of the Evidence Standard and Discussion
Appellant's weight of the evidence claims are meritless. As previously discussed, the evidence established each element of the crimes for which Appellant was convicted. A verdict is against the weight of the evidence "only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Blakeney, 946 A.2d 645, 652 (Pa. 2008). See also, Commonwealth, v. Thompson, 648 A.2d 315, 324 (Pa.1994). A true weight of the evidence challenge "concedes that sufficient evidence exists to sustain the verdict but contends that the verdict was against the weight of the evidence." Armbrnster v. Horowitz, 744 A.2d 285, 286 (Pa. Super. 1999)(citations omitted). An allegation the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth, v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).
Viewing the evidence against this standard. Appellant's weight of the evidence claims are without merit. The jury's verdicts do not shock one's sense of justice. The verdicts were amply supported by the evidence, as summarized above. The weight of the evidence claims are wholly without merit and must be dismissed.
CONCLUSION
For the above reasons, the judgments of sentence should be affirmed. The Clerk of Courts is hereby directed to transmit the record to the Superior Court.
Date February 2, 2022