Com. v. Alexander, A.

• Court: Superior Court of Pennsylvania
• Decided: November 12, 2025
• Docket: 1189 WDA 2024
• Status: Unpublished

Opinion

J-A23043-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AARON ALEXANDER : : Appellant : No. 1189 WDA 2024

Appeal from the Judgment of Sentence Entered June 3, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001279-2023

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and BENDER, P.J.E.

CONCURRING MEMORANDUM BY McLAUGHLIN, J.:

FILED: November 12, 2025

I respectfully concur. I do not agree that Alexander’s substantive

argument goes to weight, rather than sufficiency. I do agree, however, that

his sufficiency argument fails on the merits. I therefore concur.

Alexander’s statement of questions contains two issues challenging the

sufficiency of the identification evidence, one for each offense. As stated in

the statement of questions, the issue is that “the identity testimony presented

by the Commonwealth was so inherently unreliable that a verdict based upon

it could amount to no more than surmise or conjecture.” Alexander’s Br. at 6.

As the majority recounts, although Alexander lists two issues, he

presents a single argument section. I agree with the majority that this

violation of Pa.R.A.P. 2119(a) does not impede our review and therefore does

not warrant a finding of waiver. Alexander’s argument section contends that J-A23043-25

the identification evidence was so contradictory and unreliable as to render

the guilty verdict nothing more than surmise or conjecture. He cites two cases:

Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976), and

Commonwealth v. Bennett, 303 A.2d 220, 221 (Pa.Super. 1973).

In Bennett, the Commonwealth based its case on the testimony of a

single witness. The witness was a passenger in a stolen car driven by the

defendant. The passenger confessed to stealing the car and implicated the

defendant. However, he gave “several wholly different, conflicting and

inconsistent versions” of the story. Id. at 220. Each time he changed the

story, he said the prior version was a lie and that the latest version was the

truth. This Court concluded that the “situation presented the jury not with a

mere conflict or contradiction in testimony which was reasonably reconcilable

by them[.]” Id. at 221. Rather, this Court concluded that it was a case that

should not have gone to the jury. We explained that this was so because “the

party having the burden offer[ed] testimony of a witness, or of various

witnesses, which is so contradictory on the essential issues that any finding

by the jury would be a mere guess[.]” Id.

In Farquharson, the Pennsylvania Supreme Court acknowledged what

it termed “the Bennett principle” but found it inapplicable there. The Court

explained that Pennsylvania appellate courts cannot reweigh evidence. It

stated, however, that that concept “must be distinguished from an equally

fundamental principle that a verdict of guilt may not be based upon surmise

or conjecture.” Farquharson, 354 A.2d at 550. The Court concluded that the

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Bennett rule did not apply because, although the testimony of the

Commonwealth’s star witness contained contradictions and she had a motive

to lie, “the Commonwealth was able to provide corroboration from a most

impressive source, i.e., the mouth of the appellant.” Id. at 551. The Court

explained that the evidence was therefore sufficient:

Thus, although appellant did not admit that she was a part of a conspiracy to murder Dr. Weingrad, her testimony was sufficient to provide an indicium of trustworthiness to the testimony of Gloria Burnette on the critical issue sufficient to permit the question to be properly left to the trier of fact. Under these circumstances, the reasoning of Bennett, supra is inapplicable.

Id. at 551-52 (emphasis added, footnote omitted).

Citing Bennett, Alexander argues that the only evidence identifying him

as the shooter was the victim’s “wholly different, conflicting and inconsistent

identifications.” Appellant’s Br. at 18. He maintains that the victim initially “did

not give any description of who shot him,” then said the shooter “was a black

male wearing all black,” and later “insisted that his roommate had knocked on

his door, shot him and then fled.” Id. Alexander states that “[f]inally, [the

victim] asserted that someone called ‘Joe’ shot him.” Id.

He adds that the victim initially testified that he had no relationship with

the shooter, but then on cross-examination had to “backtrack” when defense

counsel pointed out that he had [Alexander’s] cell phone number, at which

point the victim conceded that he “encountered him semi-regularly” and

communicated with him in person and by phone. Alexander also points out

that the victim first testified he was in the hospital recovering from the

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shooting for a year, but when challenged said it was five months, only to claim

later that now remembered it was eight days. Shortly thereafter, when again

asked, he said it was five months, despite having just said he remembered it

was only eight days.

Alexander thus argues that the victim’s testimony was “so contradictory

on the basic issues as to make any verdict based thereon pure conjecture the

jury should not be permitted to consider it.” Appellant’s Br. at 19 (quoting

Bennett, 303 A.2d at 221). He maintains that the victim’s testimony “fits

perfectly with the unreliability standard Farquharson enunciated and balance

portrayed in Bennett.” Id. at 20.

Alexander’s argument goes to sufficiency. He relies on the “Bennett

principle” the Pennsylvania Supreme Court harkened to in Farquharson:

“where evidence offered to support a verdict of guilt is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, a jury

may not be permitted to return such a finding.” Farquharson, 354 A.2d at

550 (citing Bennett, 303 A.2d at 221). This is a rule of sufficiency, not weight

of the evidence. Id. at 551-52. The argument essentially is that the evidence

does not as a matter of law rise to the level of proof beyond a reasonable

doubt. Alexander thus presents us with an adequately developed argument

that the identification evidence was insufficient as a matter of law.

However, I agree with the majority that Alexander’s argument fails on

the merits. The majority somewhat inconsistently finds waiver on the one

hand for failure to develop a sufficiency argument, while on the other hand

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concluding that Alexander’s Bennett argument fails because “the evidence

was sufficient to prove Appellant’s identity as the person who shot Grimsley.”

Majority at 9. Regardless, I agree that the victim’s various misstatements or

inconsistencies were not so great that the factfinder could not reconcile them

and find guilt beyond a reasonable doubt.

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