Com. v. Foster, R.

Opinion

J-S46004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RASSHAUL FOSTER,

Appellant No. 3232 EDA 2014

Appeal from the Judgment of Sentence Entered September 19, 2014 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002233-2013

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 02, 2016

Appellant, Rasshaul Foster, appeals from the judgment of 1 to 23

months’ incarceration, followed by three years’ probation, imposed after a

jury convicted him of receiving stolen property (RSP), 18 Pa.C.S. § 3925(a),

as well as various counts of criminal conspiracy, 18 Pa.C.S. § 903(a).

Appellant challenges the weight and sufficiency of the evidence to sustain his

conspiracy convictions. After careful review, we affirm.

Appellant’s convictions stemmed from his participation, along with his

co-defendant, Ernestina Reyes, in using fraudulent credit cards to purchase

approximately $2,000 worth of gift cards from a mall in Montgomery County.

Appellant was sentenced to the above-stated term on September 19, 2014.

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* Retired Senior Judge assigned to the Superior Court. J-S46004-16

He filed a timely post-sentence motion, which the court denied. Appellant

then filed a timely notice of appeal. He also filed, after this Court issued a

per curiam order permitting him to do so, a nunc pro tunc Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The trial court filed a

responsive opinion on April 1, 2015. Appellant now presents the following

two issues for our review (which we have reordered for ease of disposition):

1. Whether the trial court erred in finding that there was legally sufficient evidence to support Appellant[’s] … conviction for criminal conspiracy in violation of 18 [Pa.C.S. §] 903(a)[?]

2. Whether the trial court abused its discretion when it denied Appellants’ [sic] motion for a new trial made pursuant to [Pa.R.Crim.P.] 607 (relating to challenges to [the] weight of the evidence)[?]

Appellant’s Brief at 9 (unnecessary capitalization and emphasis omitted).

Appellant first claims that the evidence was insufficient to convict him

of criminal conspiracy. Our standard of review of such a claim is as follows:

In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

“A person is guilty of conspiracy with another person or persons ... if

with the intent of promoting or facilitating” the commission of a crime, he:

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(1) agrees with such other 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; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). Additionally, “[t]his Court has repeatedly held that

flight, along with other circumstantial evidence, supports the inference of a

criminal conspiracy.” Commonwealth v. Marquez, 980 A.2d 145, 150 (Pa.

Super. 2009) (citing Commonwealth v. Davalos, 779 A.2d 1190 (Pa.

Super. 2001); Commonwealth v. Hatchin, 709 A.2d 405 (Pa. Super.

1998)). “Flight is one aspect of the web of evidence that as a whole points

to the existence of a criminal conspiracy.” Id. (citing Commonwealth v.

Davenport, 452 A.2d 1058 (Pa. Super. 1982)).

Here, Appellant contends that the evidence failed to prove that he

agreed to assist Ms. Reyes in her use of fraudulent credit cards to purchase

gift cards at a shopping mall. According to Appellant, the Commonwealth

established only “that [A]ppellant drove the car and associated with [Ms.]

Reyes while she engaged in the transactions.” Appellant’s Brief at 19. He

stresses that “no contraband” was found in his possession, and “he never

engaged in any transactions….” Id. Appellant also avers that the evidence

of his flight from police was “paltry and puny” and, thus, it cannot support

that he had a consciousness of guilt. Id. at 18. Appellant then transgresses

into a rather lengthy discussion of several cases wherein DNA or other

evidence exonerated wrongly convicted individuals. Id. at 20-22. Appellant

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contends that like those individuals, he too is innocent of the crimes for

which he was convicted.

Contrary to this claim, the evidence presented at Appellant’s trial

proves he is guilty of conspiring with Ms. Reyes. There, the Commonwealth

presented evidence that on February 23, 2013, Appellant and Ernestina

Reyes traveled from New York to a shopping mall in Montgomery County,

Pennsylvania, where Ms. Reyes used fraudulent credit cards to purchase

approximately $2,000 in gift cards. See N.T. Trial, 5/12/14, at 66, 75-77.

Specifically, Ms. Reyes purchased two $500 Bloomingdale’s gift cards, and

two $400 gift cards from Macy’s. Id. at 75-77. According to the trial court:

[Appellant] did not contest at trial that fraudulent transactions occurred on [that date]. The evidence[, including video surveillance footage,] showed [Appellant] and [Ms.] Reyes as they walked from register to register in Bloomingdale’s and Macy’s so that [Ms.] Reyes could purchase gift cards using fake credit cards. While [Appellant] did not always appear with [Ms.] Reyes at the registers, the fake credit cards bore a woman’s name and he was, nevertheless, nearby during most of the fraudulent transactions. The evidence also included an instance where [Appellant] and [Ms.] Reyes were at a register in Macy’s with three packets of men’s undergarments that [Appellant] had selected. [Appellant] walked away and soon returned with a gift card, which he placed on the counter. Reyes attempted to make a purchase, but the credit card she used was declined. [Appellant], who was standing next to [Ms.] Reyes when the transaction failed, began looking in the direction of a register in the [men’s] suit department. [Ms.] Reyes walked to that register and attempted to purchase a gift card. When the two Visa credit cards she attempted to use were declined, she walked back in [Appellant’s] direction shaking her head as if to indicate “no.” No subsequent transactions were made in Macy’s.

Trial Court Opinion (TCO), 4/1/15, at 4.

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Appellant and Ms. Reyes then attempted to leave the shopping mall in

a car driven by Appellant. Police officers patrolling at the mall, and who

were aware of Ms. Reyes’ illegal activity, attempted to stop the vehicle. One

of those officers, Brian Palermo, testified at Appellant’s trial that his police

vehicle was directly behind Appellant’s vehicle when the officer activated his

vehicle’s lights and sirens. N.T. Trial, 3/12/14, at 65, 79. Officer Palermo

stated that Appellant’s vehicle “failed to yield” and, “as it became apparent

to [the officer] and to the other officers on scene that this vehicle was not

going to yield, two other patrol cars pulled in front of the vehicle to ensure

that no vehicle pursuit would be taking place.” Id. at 65. Appellant stopped

his vehicle at that point. Id. A subsequent search of the car revealed, on

the passenger side of the vehicle where Ms. Reyes had been sitting, the

fraudulent credit cards that had been used inside the mall, the gift cards that

had been illegally purchased, and receipts for those gift cards. Id. at 68-71,

73.

Viewing this evidence in the light most favorable to the

Commonwealth, it supports the jury’s finding that Appellant not only knew

that Ms. Reyes was using fraudulent credit cards, but that he assisted her in

doing so by driving her to and from the shopping mall. Accordingly, the

evidence was sufficient to sustain his conspiracy convictions.

Next, Appellant argues that the jury’s verdict was contrary to the

weight of the evidence.

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A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the jury's verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

In rejecting Appellant’s weight claim, the trial court discussed the

evidence presented at Appellant’s trial, and then explained:

[T]he jury, as fact-finder, was free to credit the abundant evidence of a conspiratorial relationship between [Appellant] and [Ms.] Reyes. It was also free to reject the defense theory that [Appellant] and [Ms.] Reyes, both New York residents, were merely on an extended date at the Montgomeryville Mall and that [Appellant] was all the while unaware that she was engaging in fraudulent transactions during repeated trips to registers on several floors in two different department stores. Thus, [Appellant] is not entitled to a new trial on the basis of a challenge to the weight of the evidence.

TCO at 4.

In attacking the court’s decision, Appellant essentially reiterates his

sufficiency argument, stressing that he was merely present when Ms. Reyes

committed the crimes, as evidenced by the fact that she was found in

possession of the fraudulent credit cards, gift cards, and receipts. Appellant

also reiterates that the flight evidence was weak, but newly contends

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(without citation to the record) that the evidence indicated that he slowed

his vehicle before the officers blocked the road. Appellant maintains that

this fact is “at odds with the trial courts [sic] opinion[,]” wherein it states

that Appellant “did not immediately yield, prompting two police vehicles to

have to block his path.” Appellant’s Brief at 14; TCO at 6. Appellant further

challenges the court’s statement that he and Ms. Reyes visited “numerous”

registers, contending that the evidence indicated he was present at only two

registers with Ms. Reyes. See Appellant’s Brief at 16-17 (citing TCO at 6).

Initially, in the portions of the trial court’s opinion challenged by

Appellant, the court was discussing his sufficiency of the evidence claim, not

the weight of the evidence to support the verdict. In rejecting Appellant’s

weight claim, the court offered the above-quoted discussion, which Appellant

does not mention, let alone attack as an abuse of the court’s discretion.

In any event, even if the court did consider Appellant’s flight in regard

to his weight-of-the-evidence issue, the court’s conclusion that Appellant did

not ‘immediately yield’ was supported by Officer Palmero’s testimony. See

N.T. Trial, 3/12/14, at 65 (Officer Palmero’s testifying that after he activated

his “overhead lights and sirens” Appellant did not “immediately pull over”

but instead he “failed to yield” until “two other patrol cars pulled in front of

[Appellant’s] vehicle”). Additionally, even if the court overstated that

Appellant and Ms. Reyes visited ‘numerous’ registers, that was clearly not a

prominent fact relied upon by the court in rejecting Appellant’s challenge to

the weight and/or sufficiency of the evidence. Instead, the court stressed

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Appellant’s presence “nearby during most of the fraudulent transactions[;]”

the surveillance video showing Appellant’s placing a gift card on the

checkout counter; his scanning the store for a different register when Ms.

Reyes’ card was declined; Ms. Reyes’ shaking her head “no” to Appellant

when her second attempt to buy the gift card failed; and Appellant’s failure

to ‘immediately yield’ when police attempted to stop his vehicle as he was

leaving the mall. See TCO at 3-4, 6.

In light of the evidence cited by the court in rejecting Appellant’s

weight-of-the-evidence claim, and the weakness of his argument on appeal,

we ascertain no abuse of discretion in the court’s decision to deny Appellant

a new trial.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2016

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