J-A17006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RONALD CRAWFORD,
Appellant No. 970 EDA 2014
Appeal from the Judgment of Sentence February 28, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003969-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 18, 2015
Ronald Crawford appeals from the judgment of sentence entered
February 28, 2014, in the Philadelphia County Court of Common Pleas.
Crawford was sentenced to an aggregate term of 18 to 36 years’
imprisonment following his jury conviction of aggravated assault, robbery,
possession of an instrument of crime, persons not to possess firearms,
carrying a firearm without a license, and carrying a firearm on a public
street,1 for the November 3, 2012, gunpoint robbery and shooting of Shaqwil
Kemp. On appeal, Crawford contends the suppression court abused its
discretion when it prohibited him from asking the victim what he saw at the
time of the crime, and when it denied his motion to suppress. Crawford ____________________________________________
1 18 Pa.C.S. §§ 2702, 3701, 907, 6105, 6106, and 6108, respectively. J-A17006-15
further asserts the evidence was insufficient to identify him as the
perpetrator of the crime. Upon our review of the record, the parties’ briefs,
and the relevant case law, we affirm.
The facts underlying Crawford’s arrest and conviction are summarized
by the trial court as follows:
[O]n November 3, 2012, at approximately 2:30 p.m., Shaqwill Kemp was in the lobby of the Blumberg Projects, located at 1516 Judson Way in Philadelphia, waiting for an elevator to take him to his girlfriend’s residence. When the elevator arrived, Mr. Kemp entered and was followed inside by [Crawford]. Mr. Kemp knew [Crawford] from the neighborhood for five (5) years by the moniker of “Reg[a]s”.7
__________ 7 Mr. Kemp provided [Crawford’s] nickname to detectives, who were then able to tie that information to [Crawford] and produce his photograph. [The nickname is spelled both “Regis” and “Regas” throughout the proceedings and transcripts. In this appeal, we will use the spelling “Regas.” adopted by both Crawford and the Commonwealth in their appellate briefs.]
__________
Mr. Kemp pushed the button for the 17th floor, and [Crawford] pushed the button for the 10th floor. [Crawford] then retrieved a black handgun from his waistband, pointed it at Mr. Kemp, and ordered him to hand over everything that he had. Mr. Kemp handed [Crawford] $845 in U.S. currency from his left pocket; [Crawford] went though Mr. Kemp’s pockets and took his cell phone. [Crawford] then fired three (3) shots at Mr. Kemp, striking him in the right thigh and buttocks, and fled the elevator on the 10th floor.
Bleeding profusely, Mr. Kemp exited the elevator on the 17th floor, where he encountered a woman and asked her to call an ambulance. Paramedics transported him to Hahnemann University Hospital for emergency treatment; fortunately, Mr. Kemp was able to survive his gunshot wounds.
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Later that same day, Mr. Kemp met with detectives and described the [] events as detailed above. He also provided a physical description of [Crawford] along with his nickname “Reg[a]s”, and positively identified him from a photo array. Further, Mr. Kemp testified to the above events at a grand jury hearing; there, in addition to the foregoing, he testified that when [Crawford] retrieved the handgun, he said, “[Y]ou know what it is, what you forgot, it was my cousin” – which Mr. Kemp understood to mean [Crawford’s] cousin, “Newt”, who had “pulled a gun out on [Mr. Kemp] the night before, and told [him] not to come around there no more.”
****
Not astonishingly, at trial, Mr. Kemp recanted a portion of his prior sworn statements. That is, while he testified to the events of the robbery/shooting as set forth above, he suddenly remembered that the culprit was not [Crawford] – whom he had known for five years – but an unidentifiable “masked man.” [Crawford had made the same claim to the building security officers who responded immediately after the shooting. Moreover, when the first police officer on the scene asked Kemp who shot him, Kemp replied, “some dude.” N.T., 11/14/2014, at 58. See also N.T., 11/13/2013, Exhibit C-5, Incident Report (stating culprit was “an unknown black male wearing a black mask”). It was not until he talked to officers later that evening that he identified the perpetrator as “Regas.”]
The jury, however, embraced Mr. Kemp’s prior sworn statements as the truth of the matter, as it was entitled to do.8
__________ 8 The Commonwealth also presented the building’s security officers, Christopher Moore and Andres Rodriguez, who both testified that, upon hearing the gunshots fired from inside the building, they went to the stairway exit where [Crawford] emerged within one (1) minute of the shooting. They attempted to stop [Crawford], who was concealing something in his pants, but [Crawford] struggled with them and “slipped out of his jacket” and fled. The officers yelled, “Come back and get your jacket. Come back and get your jacket” – but [Crawford] yelled back, “I’m cool. I’m good. Leave me alone”, as he continued to flee. Inside the jacket were [$242.00 in] U.S. currency and a cell phone. Police at the scene secured the jacket and its
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contents under property receipt, and the jacket was submitted to the laboratory for DNA testing. Following his apprehension, [Crawford] submitted to DNA testing, which matched the DNA found in the sleeve and collar of the jacket. In addition, Mr. Rodriguez positively identified [Crawford] from a photo array “without hesitation”, and once again identified him at trial.
Trial Court Opinion, 11/5/2014, at 2-3, 8 (record citations omitted and
emphasis in original).
Crawford was subsequently arrested and charged with the
aforementioned crimes. His case was submitted to an investigating grand
jury, which returned an indictment on all charges. On October 2, 2013,
Crawford filed a pre-trial motion to suppress his identification by the victim
via a photo array and during the grand jury proceedings. Following a
hearing on November 1, 2013, the court denied the suppression motion.
Crawford’s case proceeded to trial, and on November 15, 2013, a jury found
Crawford guilty of all charges. On February 28, 2013, the trial court
imposed an aggregate sentence of 18 to 36 years’ imprisonment.2 ____________________________________________
2 The trial court imposed a sentence of 10 to 20 years’ imprisonment for the charge of aggravated assault, a consecutive five to 10 years’ imprisonment for the charge of robbery, and a consecutive three to six years’ imprisonment for the charge of persons not to possess firearms. No further penalty was imposed on the remaining offenses.
We note that the prosecutor mentioned during the sentencing hearing that a “five to ten mandatory minimum” was discussed with Crawford prior to trial. N.T., 2/28/2014, at 4. Nevertheless, upon our review of the sentencing transcript and the sentencing order, it does not appear a mandatory minimum sentence was imposed in this case. See id. at 1-21; Order, 2/28/2014. Accordingly, we detect no Alleyne issue with Crawford’s sentence. See Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).
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Thereafter, Crawford filed a timely post-sentence motion challenging the
weight of the evidence and requesting reconsideration of his sentence. On
March 12, 2014, the trial court denied Crawford’s post-sentence motion, and
this timely appeal followed.3
Crawford raises the following three issues for our review:
I. Did the suppression court abuse its discretion by prohibiting Crawford from asking the victim, and sole eyewitness to the crime, about what he saw at the time of the crime?
II. Did the suppression court abuse its discretion by denying Crawford’s motion to suppress identifications where the court did not consider the totality of the circumstances and the identification procedure was unnecessarily suggestive?
III. Was the evidence insufficient as a matter of law to identify Crawford as the perpetrator beyond a reasonable doubt?
Crawford’s Brief at 4.
First, Crawford argues the suppression court abused its discretion
when it limited his examination of the victim during the suppression hearing.
The following facts are germane to this issue.
During the suppression hearing, Crawford’s attorney began his
examination of Kemp by asking him, “Were you shot on November 3, 2012?”
N.T., 11/1/2013, at 20. The prosecutor objected, and the court sustained
the objection. Crawford’s attorney explained to the court that this line of
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3 On July 21, 2014, the trial court ordered Crawford to file a concise statement of errors complained of on appeal. Crawford complied with the court’s directive, and filed a concise statement on August 6, 2014.
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questioning was “going to go to [Kemp’s] ability to see what happened at
the time” which, the attorney argued, was part of the motion to suppress.
Id. at 20, 21. The suppression court responded:
We’re here, Mr. Crawford, on your motion to suppress an [identification] because of it being unduly suggestive in process. Not the validity of his ability to observe who shot him. So, there [are] two different issues. That’s a cross-examination issue for trial. You’re here about the process of his identification of the defendant.
Id. at 21. Crawford’s attorney further argued that Kemp’s “ability to make
an identification of any kind is based upon what he was able to see at the
time[.]” Id. However, the suppression court stated, “No, actually, they’re
very separate issues.” Id. at 22. At that point, rather than belabor the
issue, Crawford’s attorney asked the court to “[n]ote [his] objection,” and
moved on with his examination, questioning Kemp about the circumstances
surrounding his identification of Crawford in the photo array. Id.
Nevertheless, later in the examination, Crawford’s attorney was
permitted to ask Kemp the following question: “Mr. Kemp, you initially told
police that the man who shot you was both unknown to you and wearing a
mask, correct?” Id. at 33. Kemp answered, “Yes.” Id. As a follow-up
question, Crawford’s attorney asked, “So at approximately 2:30 on
November 3 of 2012, the man was wearing a mask, and later that night, you
circled a picture of somebody’s face that had been covered by a mask?” Id.
at 34. To this query, Kemp responded, “I circled it. I circled it a couple of
months later. Like, not a couple months later, but later down the line.” Id.
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Further, during the suppression hearing, Kemp testified (1) when he
was shown the photo array, he was sitting in an unmarked police car with
two officers; (2) when he initially did not identify Crawford, the officers told
him to “look carefully;” (3) when he was interviewed at the station after the
shooting, an officer “said something about [him] getting locked up if [he
doesn’t] do the right thing[;]” and (4) before his grand jury testimony, the
prosecutor told him his testimony “could help [him] with [his] open case.”
Id. at 22-23, 25-26, 29, 31.
Based upon this record, Crawford contends the suppression court
misapplied the law when it refused to allow him to ask Kemp what Kemp
saw at the time of the crime. He asserts that when ruling upon a motion to
suppress, a court should consider the totality of the circumstances, which
includes the witness’s prior opportunity to observe the defendant and the
existence of any discrepancy between the witness’s prior description and the
defendant’s appearance. Crawford’s Brief at 13, citing Commonwealth v.
Moore, 633 A.2d 1119 (Pa. 1993), cert. denied, 513 U.S. 1114 (1995).
Furthermore, Crawford argues, “[t]his Court has repeatedly held that … what
witnesses see at the time of the crime is the ‘most important factor[.]” Id.
at 14, citing Commonwealth v. Edwards, 762 A.2d 382 (Pa. Super.
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2000).4 Therefore, he contends the court’s refusal to permit this line of
questioning constituted an abuse of discretion.
It is well-settled that “[g]enerally, evidentiary decisions are left to the
trial court’s discretion and will not be reversed absent a clear abuse of that
discretion.” Commonwealth v. Hicks, 91 A.3d 47, 52 (Pa. 2014).
Nevertheless, “not all error at trial ... entitles a [defendant] to a new trial,
4 We note that Crawford’s citation to Edwards, supra, is taken out of context. In Edwards, the appellant robbed a convenience store clerk and patron at gunpoint. Edwards, supra, 762 A.2d at 384. Three weeks later, both victims identified appellant as the assailant from a photo array. Id. On appeal, a panel of this Court considered whether appellant’s trial counsel was ineffective for failing to request a line-up before the preliminary hearing, or failing to file a motion to suppress the victims’ in-court identifications. Accordingly, the panel considered “whether the totality of the circumstances support[ed] an independent basis for [the victims’] identification” of appellant as the perpetrator of the crime. Id. at 391. In doing so, the panel explained:
The most important factor in the totality of the circumstances test is the opportunity of the witness to view the suspect at the time of the crime. This would seem to be particularly so when the witness was the victim, for as we have ... noted, “Whenever the victim of a crime has an opportunity to observe the criminal, the impression of the face of an assailant is etched upon the prey by the terror of the occasion[.]”
Id. (citation omitted and emphasis added). Therefore, this Court considered the opportunity of the witness to view the suspect during the crime to be a significant factor, i.e., was the robber masked, was there proper lighting, not necessarily, as Crawford suggests, “what witnesses see at the time of the crime.” Crawford’s Brief at 14.
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and [t]he harmless error doctrine ... reflects the reality that the accused is
entitled to a fair trial, not a perfect trial[.]” Commonwealth v. Mosley,
114 A.3d 1072, 1080 (Pa. Super. 2015) (quotation omitted). Accordingly, a
court’s error in erroneously excluding testimony may be harmless if the
testimony is merely cumulative of other evidence that was properly
admitted. Commonwealth v. Hawkins, 701 A.2d 492, 508 (Pa. 1997),
cert. denied, 532 U.S. 1083 (1998).
Here, Crawford’s claim fails because the court was aware of the fact
that Kemp initially did not identify his assailant. First, Detective Edward
Keppol testified that Kemp initially told one of the responding officers that “a
masked man” shot him. N.T., 11/1/2013, at 14. Detective Keppol further
testified, however, when he asked Kemp why he initially declined to identify
his attacker, Kemp replied, “I was scared.” Id. at 15. More importantly, as
detailed above, Crawford was permitted to ask Kemp if he initially told police
the shooter was an unknown masked man. See id. at 33. Therefore, any
error in the court’s initial preclusion of this line of questioning was harmless.
Furthermore, Crawford does not explain what other relevant testimony
he wanted to elicit, had he been permitted to ask Kemp what he “saw” at
the time of the shooting. Accordingly, no relief is warranted on this claim.
In his second issue, Crawford argues the suppression court erred in
denying his motion to suppress Kemp’s identification.
Our review of an order denying a motion to suppress is well-
established:
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We may consider only the Commonwealth’s evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
An appellate court, of course, is not bound by the suppression court’s conclusions of law. However, it is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.
Commonwealth v. Davis, 17 A.3d 390, 393 (Pa. Super. 2011) (citation
omitted), appeal denied, 29 A.3d 371 (Pa. 2011).
Moreover, where, as here, the defendant contests identification
evidence, “the central inquiry is whether, under the totality of the
circumstances, the identification was reliable.” Id. at 394 (citation omitted).
With regard to a challenge to a photo array,
[o]ur Supreme Court has instructed that a photographic identification is unduly suggestive if, under the totality of the circumstances, the identification procedure creates a substantial likelihood of misidentification. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 112 (2004) (citation omitted).
Whether an out-of-court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances. We will not suppress such identification unless the facts demonstrate that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
Commonwealth v. Burton, 770 A.2d 771, 782 (Pa.Super.2001) (citations and quotations omitted). The variance between the photos in an array does not necessarily establish grounds for suppression of a victim’s identification. Id. “Photographs used in line-ups are not unduly suggestive if the suspect’s picture does not stand out more than those of the others, and the people depicted all exhibit similar facial characteristics.” Commonwealth v. Fisher, 564 Pa. 505, 769
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A.2d 1116, 1126 (2001). “[E]ach person in the array does not have to be identical in appearance.” Burton, 770 A.2d at 782. The photographs in the array should all be the same size and should be shot against similar backgrounds. Commonwealth v. Thomas, 394 Pa.Super. 316, 575 A.2d 921 (1990).
Commonwealth v. Kendricks, 30 A.3d 499, 504 (Pa. Super. 2011), appeal
denied, 46 A.3d 716 (Pa. 2012). Nevertheless,
[s]uggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained. To do so, the Commonwealth must establish that the in-court identification resulted from the criminal act and not the suggestive encounter.
Commonwealth v. McGaghey, 507 A.2d 357, 359 (Pa. 1986) (citations
omitted).
Here, Crawford challenges Kemp’s pre-trial identification of him as the
assailant, arguing that both the identification procedure and the photo array,
itself, were “so ‘impermissibly suggestive’ that they created ‘a very
substantial likelihood’ that Kemp irreparably misidentified Crawford.” Id. at
18.
With regard to the identification procedure, Crawford emphasizes (1)
the officers told Kemp he would be locked up on probation if he did not do
the right thing; (2) the photo identification occurred in a car, with two
detectives present, and lasted ten to 15 minutes; (3) the officers spoke with
Kemp for five minutes before showing him the photo array; (4) the officers
told Kemp to “look carefully” after he failed to initially identify Crawford, and
(5) Kemp took another five to seven minutes before he circled Crawford’s
photo. See id. at 17. Moreover, Crawford contends the photo array was
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“impermissibly suggestive” because his photo “stands out more” than the
others. Id. at 18. Specifically, he asserts he has longer hair on his head
and face than the other suspects, all of the other men are either bald or
have closely cropped hair, two of the men have short goatees, and he is the
only suspect wearing a hooded sweatshirt. Accordingly, he claims the
suggestiveness of both the photo array and identification procedure created
“‘a very substantial likelihood’ that Kemp irreparably misidentified Crawford.”
Id.
However, the suppression court rejected Crawford’s claim for several
reasons. First, the court pointed to the fact that Kemp explained he initially
stated he did not know who robbed him because he was scared. See Trial
Court Opinion, 11/5/2014, at 12. More importantly, with regard to the
purported suggestiveness of the photo array and the identification
procedure, the suppression court emphasized,
the unalterable fact remains that Mr. Kemp is the source of [Crawford’s] identity, as he is the one who provided [Crawford’s] nickname to police which is what yielded [Crawford’s] photo. Moreover, the “suggestiveness” of the photo array is decidedly irrelevant as Mr. Kemp knew [Crawford] from the neighborhood for many years.
Id. (emphasis in original). The court, as fact finder, was entitled to credit
Kemp’s belated identification of “Regas” as his assailant, rather than his
initial statement that he was attacked by an unknown, masked man. Davis,
supra. See N.T., 11/1/2013, at 43-44 (suppression court found Kemp’s
testimony that he was threatened by officers to provide a suspect not
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credible). Accordingly, once the court determined that Kemp knew the
shooter by nickname for several years, we agree that any potential
suggestiveness in the photo line-up was irrelevant. See N.T., 11/1/2013, at
44 (suppression court stated “the only way the detective got the defendant’s
photograph was from the information provided from Mr. Kemp to begin
with.”). Moreover, the court also noted that building security guard Andres
Rodriguez unequivocally identified Crawford as the person he saw fleeing the
apartment building just moments after the shooting. See id. at 12 n.9.
Accordingly, we find no error or abuse of discretion on the part of the
suppression court in denying Crawford’s pre-trial suppression motion.
In his final claim, Crawford challenges the sufficiency of the evidence
identifying him as the perpetrator of the crime.
In reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all reasonable inferences drawn therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support the [fact finder’s] beyond a reasonable doubt. Commonwealth v. Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013). Whether sufficient evidence exists to support the verdict is a question of law; thus, our standard of review is de novo and our scope of review is plenary. Id. at 151.
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,
135 S. Ct. 1400 (U.S. 2015). Furthermore, “the trier of fact, while passing
upon the credibility of witnesses and the weight of the evidence, is free to
believe all, part, or none of the evidence[,]” and an appellate court will not
substituted its credibility determination for that of the jury.
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Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007), cert. denied,
553 U.S. 1035 (2008).
Here, Crawford argues the evidence was not sufficient to establish his
identity as the shooter because the Commonwealth presented the jury with
“two, opposing propositions that are equally reasonable and mutually
inconsistent.” Crawford’s Brief at 21. First, the Commonwealth presented
testimony that Kemp did not know his masked attacker, who robbed him of
$845.00 and a cell phone. However, the Commonwealth also presented
evidence that (1) Kemp told the police he was shot by a man he had known
for several years as “Regas,” (2) Kemp identified Crawford as “Regas” from
a photo array, and (3) a security guard saw Crawford leaving the building
moments after the shooting, with $242.00 in his jacket pocket and an
unidentified cell phone. Id. Crawford emphasizes that the prosecutor never
asked Kemp to identify the jacket removed from Crawford or the cell phone
recovered from that jacket.5 Therefore, he asserts the jury’s determination
that Crawford was the shooter “was both unreasonable and based on
speculation and conjecture.” Id. at 22.
5 Indeed, during cross-examination, Detective Edward Keppol acknowledged that the property receipt for Kemp’s cell phone indicated it was recovered inside 1516 Judson Way. N.T., 11/14/2014, at 53. See also Exhibit C-25, Property Receipt 3062871. The prosecutor never asked Detective Keppol if the phone recovered from the jacket was the same one stolen from Kemp.
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We conclude, however, that the jury’s verdict was properly based on
its determination that Kemp initially lied when he stated he was unable to
identify his attacker. Both in his subsequent statement to police, and, more
importantly, in his testimony before the investigating grand jury, Kemp
identified the shooter as “Regas.” Indeed, during trial, the Commonwealth
recounted Kemp’s grand jury testimony in the following exchange:
[Prosecutor]. Shaqwill, do me a favor turn to Page 3 [referring to grand jury transcript]. That’s where you get sworn in. And go down to line 12. Do you see there where it says by [the Commonwealth attorney]?
[Kemp]. Yes.
[Prosecutor]. I want you to follow along with me. I want you to tell me if this was your testimony on that day with no one there.
“By [Prosecutor]: Question: Mr. Kemp, I’m going to ask you a series of questions that we’ve spoken about for the ladies and gentlemen of the grand jury. Okay.
Answer: Yes.
Question: Do you recall the afternoon of November 3rd, 2012?
Question: Around 2:30, can you tell me where you were, sir?
Answer: I was in the Blumberg Projects in the lobby.
Question: The Blumberg Projects. What type of building is that?
Answer: It’s a high-rise building.”
Do you remember that?
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[Prosecutor]. “Question: Who was in the lobby with you that day?
Answer: A guy named Reg[a]s.
Question: How long have you known Reg[a]s?
Answer: About 5 years?
Question: What happened after you were in that lobby, sir?
Answer: I hit the button for the 17th floor. Reg[a]s hit the button for the 10th floor. When I got to the 10th floor, he pulled out a gun, a black handgun and said you know, what it is, what you forgot. He knew it was my cousin.”
[Prosecutor]. Question: I’ll ask you to speak slowly and loudly into the microphone, Can you tell me again what did Reg[a]s say to you when he pulled out the handgun?
Answer: He said, you know what it is, what you forgot, it was my cousin.
Question: Why did he say that to you?
Answer: He said this because Newt pulled a gun out on me the night before and he told me not to come around here no more.
Question: And Newt is [Regas’s] cousin?
Question: When he pulled that gun, where did he pull it from?
Answer: From his waistband.
Question: Did you see the gun when you initially got on the elevator with him?
Answer: No.”
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Do you remember all that, Mr. Kemp?
[Prosecutor]. And that’s what you testified to, correct?
N.T., 11/13/2013, at 33-36 (reading from N.T., 3/15/2013, Indicting Grand
Jury, at 4-5).
Therefore, the jury was presented with a credibility determination.
Either Kemp lied immediately following the shooting and at trial when he
stated the perpetrator was an unknown, masked man, or he lied in his
statement to police and during the grand jury proceedings when he stated
the culprit was a man he had known for several years as “Reg[a]s.” Clearly,
the jury resolved the credibility determination in the Commonwealth’s favor,
a determination we will not disturb on appeal. Cousar, supra.
Moreover, the Commonwealth presented corroborative evidence that
Crawford was seen fleeing the apartment building moments after the
shooting with his hands in his pants, and refused to stop to talk to the
security officers. See N.T., 11/14/2013, at 15. In fact, Crawford was in
such a hurry that he left his jacket behind. Id. at 15, 24. While the
Commonwealth failed to prove the jacket contained either the proceeds from
the robbery or the victim’s cell phone, it was not required to do so. See
Com. v. Robinson, 817 A.2d 1153, 1161 (Pa. Super. 2003) (“There is no
requirement that the items taken in a theft or robbery be recovered.”).
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Once the jury determined that Kemp knew his assailant, and rejected
Kemp’s recantation of his prior statement, Crawford’s challenge to the
sufficiency of the evidence supporting his identification as the perpetrator of
the crime failed. Indeed, his argument on appeal is more properly
addressed to the weight of the evidence, rather than the sufficiency.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/18/2015
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