J-S17002-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAVONE LAROME GORDON : : Appellant : No. 2587 EDA 2024
Appeal from the Judgment of Sentence Entered September 19, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000036-2022
BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 3, 2025
Javone Larome Gordon (Appellant) appeals from the judgment of
sentence imposed following his conviction by a jury of three counts of criminal
conspiracy, two counts of robbery, and one count of theft by unlawful
taking/disposition (with the value taken from a bank being between $2,000
and $100,000).1 The trial court found Appellant guilty of harassment. 2
Counsel for Appellant, Goerge S. Yacoubian, Jr., Esquire (Counsel), has filed
a petition to withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
____________________________________________
1 18 Pa.C.S.A. §§ 903, 3702(a)(1)(iv) & (vi), 3921(a).
2 18 Pa.C.S.A. § 2709(a)(1). J-S17002-25
A.2d 349 (Pa. 2009). After careful review, we grant Counsel leave to withdraw
and affirm Appellant’s judgment of sentence.
On March 5, 2020, Appellant entered the S&T Bank (the bank) located
in Kennett Square, Chester County, Pennsylvania, soon after it had opened
for the day. Upon entering the bank, Appellant approached and jumped over
the teller’s counter, pushing aside bank teller Sharon Louise Kelp (Ms. Kelp).
Appellant demanded all of the cash from Ms. Kelp’s drawer. Appellant also
demanded and stole U.S. currency from the drawer of another teller, Keila
Rodriguez (Ms. Rodriguez). Appellant unsuccessfully searched the bank for
more cash, then fled.
After leaving the bank, surveillance video captured Appellant entering
the passenger seat of a dark blue Chrysler 300, which drove away from the
scene and was abandoned in a nearby alley. Surveillance footage further
showed a man wearing clothing similar to the bank robber’s clothing exit the
Chrysler 300, enter a Ford Crown Victoria, and leave the scene.
Police subsequently found the Crown Victoria abandoned in Wilmington,
Delaware. Police found a receipt listing Appellant’s name in the center console
area of the Crown Victoria. DNA taken from the Crown Victoria matched the
DNA of Appellant and his co-defendant, Irvin Cornelious (Cornelious). Cell
phone GPS records placed Appellant entering Pennsylvania before the robbery,
and in the vicinity of the bank one day before the robbery, and at the time of
the robbery.
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Appellant and Cornelious were arrested and jointly tried before a jury.
The jury convicted Appellant of the above-described charges. 3 On September
19, 2024, the trial court sentenced Appellant to an aggregate prison term of
7-14 years. Appellant filed no post-sentence motions, but timely filed an
appeal.
On September 26, 2024, the trial court entered an order requiring
Appellant to file a concise statement of errors complained of on appeal. The
trial court subsequently granted Appellant an extension of time within which
to file his concise statement. On November 25, 2024, in lieu of a concise
statement, Counsel timely filed a statement of his intention to withdraw from
representation and file an Anders brief with this Court. See Pa.R.A.P.
1925(c)(4) (permitting counsel to file a statement of intention to withdraw
from representation, in lieu of filing a concise statement of errors). The trial
court issued a brief opinion noting Counsel’s intention to withdraw. Trial Court
Opinion, 11/26/24.
Counsel filed in this Court filed both an Anders brief and a petition to
withdraw as counsel. “Before we address the merits of this appeal, we must
determine whether counsel has complied with the procedures provided in
Anders and its progeny,” including Santiago. Commonwealth v.
Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en banc).
3 The jury also convicted Cornelious of crimes related to the robbery. Cornelious is not a party to the instant appeal.
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The following legal principles apply to our consideration of these filings:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof ….
Anders counsel must [] provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on [the a]ppellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous.
Commonwealth v. Falcey, 310 A.3d 313, 314-15 (Pa. Super. 2024)
(quoting Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super.
2007) (citations omitted)).
Our Supreme Court has further detailed court-appointed counsel’s
duties:
[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
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Based upon our examination of Counsel’s petition to withdraw
and Anders brief, we conclude that he has complied with the requirements of
Anders and Santiago. Counsel has filed a petition to withdraw, submitted
an Anders brief detailing any issues that could be raised on appeal, and
notified Appellant of his right to retain new counsel or proceed in propria
persona and to raise additional issues. We are left, then, to determine
independently the merits of Appellant’s issues, since Counsel’s right to
withdraw “is conditional upon a finding that the appeal is wholly frivolous.”
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012).
In the Anders brief, Appellant presents issues (1) challenging the
sufficiency of the evidence underlying Appellant’s convictions; (2) asserting a
constitutional violation based on the racial composition of the jury; (3)
challenging the verdict as against the weight of the evidence; and (4)
asserting the ineffective assistance of trial counsel. See Anders Brief at 14,
15, 16, 17. We address each issue in turn.
Appellant first challenges the sufficiency of the evidence underlying his
convictions.4 Id. at 14. When examining a challenge to the sufficiency of
evidence, our standard of review is as follows:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all ____________________________________________
4 Appellant fails to identify the particular element(s) of any charge not established by the Commonwealth.
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reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is 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.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019)
(citation omitted).
Regarding Appellant’s conviction of theft, “[a] person is guilty of theft if
he unlawfully takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a).
Pursuant to Section 3702(a)(1) of the Crimes Code,
[a] person is guilty of robbery if, in the course of committing a theft, he:
***
(iv) … threatens another with or intentionally puts him [or her] in fear of immediate bodily injury;
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(vi) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.
Id. § 3701(a)(1)(iv), (vi).5
Appellant also was convicted of conspiracy to commit each of the above-
defined crimes.
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 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.
Id. § 903(a).
A person commits the crime of harassment when,
with intent to harass, annoy or alarm another, the person … strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same[.]
Id. § 2709(a)(1).
The following evidence was adduced at trial. Ms. Kelp testified that on
March 5, 2020, she worked as a teller at the bank. N.T., 4/9/24, at 60. After
5 Instantly, Appellant’s robbery offense is graded as a third-degree felony, as
he stole an amount of money greater than $2,000. See 18 Pa.C.S.A. § 3903(a.1).
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the bank’s lobby opened, “[a] gentleman jumped [over] the counter.” Id. at
62. According to Ms. Kelp, “I asked him what he was doing[,]” to which the
perpetrator replied, “it’s a robbery, bitch.” Id. In jumping over the counter,
the perpetrator pushed Ms. Kelp aside. Id. at 63. Ms. Kelp testified, “I asked
him what do you want? And then he … said he wanted all the money.” Id.
Thereafter, the perpetrator
started checking the drawers in the back. And then he wanted my drawer to get opened, so I had to unlock it. And then he [saw Ms. Rodriguez]. And then he told her to come out and had her unlock her drawers.
Id.
Ms. Kelp described the perpetrator as
all dressed in black. Looked like brand new clothes, because it had … the Nike emblem on – I’m a shoe person, but I notice it on the shoes. They were … brand new shoes and they were like shiny. They were black with a swish on the side. He had … the jogging pants on, like the nice ones, not like gathered at the bottom. But … they were Nike pants. And the sweatshirt and … the hoodie, was black. And it was Nike also. And then he had … the gaiter and the sunglasses, the dark sunglasses.
Id. at 64. Ms. Kelp described the perpetrator as a skinny, African American
male. Id. The perpetrator also wore gloves. Id. According to Ms. Kelp, the
perpetrator “took all of the cash except for the mutilated [bills] and the two[-
dollar bills].” Id. at 64-65. The perpetrator also stole cash from the drawer
monitored by another teller, Ms. Rodriguez. Id. at 65. After the robbery, the
perpetrator “jumped back over the counter and out the door.” Id. at 74.
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Ms. Kelp testified that the perpetrator exited the bank onto Cypress
Street. Id. at 74-75. After exiting the bank, the perpetrator
went directly into a dark sedan. It looked like a Chrysler. Like a … navy or black kind of Chrysler.
….
He got [i]n the passenger side [of the vehicle]. … It took off. … He took off in the direction of the one-way street. He was going up the wrong way on the one-way street. That’s … right across from [the bank] on Cypress [Street].
Id. at 75. Ms. Kelp described the Chrysler has having dark, tinted windows.
Immediately after the robbery, Ms. Kelp described Ms. Rodriguez as “a
nervous wreck[,]” and “shaken.” Id. at 76. Police officers responded to the
scene. Id. at 77. Ms. Kelp provided an officer with a description of the
perpetrator and the Chrysler. Id. at 78. Ms. Kelp described the Chrysler as
having a dark license plate, stating “[i]t probably was Delaware, more likely.”
Id. at 89. Ms. Kelp further testified that the bank had surveillance video,
which would depict the robbery. Id. at 79-80.
Ms. Rodriguez testified that she also was a teller at the bank on March
5, 2020. Id. at 94, 96. She had been in a hallway “in the back” of the bank
when she “saw the … man taking all the money from [Ms. Kelp’s] drawer.”
Id. at 97. Ms. Rodriguez testified,
I instantly panicked …. I was scared, something like that. And then as soon as the guy took her money[,] he saw me, and then he asked for my money.
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Id. at 98. Ms. Rodriguez testified that she was frightened for her life: “I
thought he’s going to take a gun out. This is it. Because … I never
experienced something like that before. So I was really, really afraid.” Id.
Ms. Rodriguez testified that the perpetrator said to her, “where’s your
money, give me all your money.” Id. at 99. Ms. Rodriguez admitted that she
was crying. Id. at 100. According to Ms. Rodriguez, the perpetrator put the
money in a bag that he had brought with him. Id. Ms. Rodriguez had
approximately $5,000 or $6,000 in her drawer. Id. at 101. After taking
money from her drawer, the perpetrator searched drawers located behind the
tellers, but he found no additional cash. Id.
Bank employee Anthony Jasienski (Mr. Jasienski) testified that on March
5, 2020, he was employed in the bank’s wealth management division, and
would visit the Kennett Square branch at least once every two weeks. Id. at
106-07. On that day, Mr. Jasienski arrived at the bank shortly after it had
opened for business. Id. at 107. Mr. Jasienski testified that
as I pulled into the parking lot there was a vehicle. It was a dark blue Plymouth sedan that was parked right in front of the doors to the branch. And I waited behind that vehicle because I couldn’t move up enough to be able to park where I wanted. So I thought someone was going to either come out of the branch or come out of the vehicle, and neither one of those two things happened.
And so I just waited and that car pulled off, so I parked. And it wasn’t very long later when we were robbed.
Id. at 108.
After arriving at the bank, Mr. Jasienski
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went into [Ms. Kelp’s] office … because I didn’t have an office in those branches that I would visit….
…
… I sat down at [Ms. Kelp’s] desk. And I was opening up my [e]mails and using the computer there. [] I saw someone enter the bank. They came in rather low and then sprung up and in just one leap jumped over that teller line….
… They had gloves on and a mask, so I didn’t really get a view of the individual themselves.
Id. at 107-08. Mr. Jasienski telephoned the police after the perpetrator left
the bank. Id. at 113.
Christine Fox (Ms. Fox) was employed as an operations manager for the
bank at the time of the robbery. Id. at 129. Ms. Fox testified that following
the robbery, she was called to the bank to audit the tellers’ drawers that had
been violated during the robbery. Id. at 133. According to Ms. Fox,
approximately $5,322 was missing from Ms. Rodriguez’s drawer, including
pre-marked bills known as “bait money.” Id. at 137. Ms. Fox further testified
that approximately $4,938 was missing from Ms. Kelp’s drawer. Id.
Kennett Square Borough Police Patrolman Jonathan Ortiz (Patrolman
Ortiz) testified that he was dispatched to the robbery scene. Id. at 139-41.
Patrolman Ortiz testified that, upon arriving at the bank, he
encountered the … reporting party. … [S]he advised that the bank had just been robbed by a black male who came in, jumped over the counter and pushed her out of the way.
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Id. at 141-42. Patrolman Ortiz discovered the perpetrator fled in a Chrysler
300, and he relayed the information over the police radio. Id. at 142.
Patrolman Ortiz further testified that
[s]hortly after relaying that information[,] it was advised by another officer who was on duty with me, stating that he had found a vehicle matching the description in the 100 block of Church Alley, which is directly across [the street from] where the … [b]ank was.
Id. at 142-43.
Patrolman Ortiz proceeded to the 100 block of Church Alley, where he
observed a parked, dark blue Chrysler 300 sedan (the Chrysler 300). Id. at
143. Patrolman Ortiz described the Chrysler 300as follows:
[F]rom my first observation of looking at the car[,] I noticed window tint on both the driver side and passenger side of the car, specifically on the two front doors where a person would be sitting. There was no other tint around the car[,] and it appeared that it was placed there … in a quick manner with the intention of hiding somebody’s face.
Id. at 144.
A Church Alley neighbor, Albert McCarthy (Mr. McCarthy), testified that
he is a retired police officer. Id. at 165. Mr. McCarthy told Patrolman Ortiz
he reported the abandoned Chrysler 300 to the police department. Id. at
145. Mr. McCarthy further advised Patrolman Ortiz that he had video
surveillance of the alley where the Chrysler 300 was parked. Id. Mr.
McCarthy stated,
[w]hen [the Chrysler 300] came up Church Alley and made the left on Juniper, the front wheels hit the curb; which it’s a very
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narrow street, that’s not unusual. They ran up on the curb and then just stopped and left it there.
Id. at 173. Mr. McCarthy stated that right after the Chrysler 300 parked on
Juniper Street, he observed “a large male with gray clothing on, like
sweatpants[,]” leave the vehicle. Id. The man then walked down Juniper
Street. Id. at 174. The next vehicle Mr. McCarthy observed was a blue Ford
Crown Victoria, which picked up the man in the sweatsuit. Id. at 174-75.
The Chrysler 300 parked on Church Alley, and remained parked until
March 5, 2020, at which time Mr. McCarthy took a photo of the Chrysler 300
and reported it to the police. Id. at 177. After returning from the police
station, Mr. McCarthy observed that the Chrysler 300 had been moved to the
middle of Church Alley, and the driver’s side door was open. Id. at 180-81.
Mr. McCarthy identified Commonwealth’s Exhibit 26 as a photograph of the
Chrysler 300, from his own surveillance video, with “a Delaware registration
of 462333.” Id. at 183. Mr. McCarthy further identified video clips from his
residential surveillance system. Id. at 190. Mr. McCarthy identified one clip
as accurately depicting the man who exited the Chrysler 300. Id. at 195.
Patrolman Ortiz described seeing a distinctive blue Ford Crown Victoria
in the vicinity prior to the robbery. Id. at 153-54. Patrolman Ortiz testified
that on February 29, 2020, he was on patrol for the Kennett Square Winterfest
event. Id. at 153. According to Patrolman Ortiz,
Winterfest is an event where several distilleries come out and promote their beers [and] alcoholic beverages. And in particular,
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there was a lot of traffic in town and I observed a particular vehicle that actually stood out that I observed throughout the day.
That was a dark blue Ford Crown Victoria with heavy, heavy window tint along every window.
That stuck out to me most due to the heavy tint, as well as the vehicle not being familiar [in] the area. I observed it. And with me growing up in the area, worked and patrolled there, I’ve never seen that vehicle there before.
Id. at 153-54. Patrolman Ortiz recalled seeing the Crown Victoria several
times throughout that day. Id. at 155.
Kennett Square Police Detective Christopher Gravina (Detective
Gravina) testified regarding his review of surveillance video from Mr.
McCarthy’s home. N.T., 4/10/24, at 51. Detective Gravina testified that the
Crown Victoria in the video had tinted front driver’s side and passenger’s side
windows. Id. According to Detective Gravina, the tint “was not flat, it was
very bubbled and appeared to be installed in a hast[]y manner.” Id. at 52.
In addition, Detective Gravina testified that the Crown Victoria’s front
passenger side, right wheel cap is missing. Id. In addition, the vehicle had
a Delaware license plate. Id. Detective Gravina testified that the Crown
Victoria
had discoloration and markings consistent to the fact that there was a decal on it before and it was then removed. So on the [] passenger side of the car there’s very distinctively an eight on the top of the roof there.
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Id. at 53-54. Detective Gravina further observed that
just below that in various surveillance angles there [are] faded letters. They’re decipherable, but I don’t know what the word said. … There’s a lot of cars that have tint, not so much [sic] cars that have windshield tint.
Id. at 54.
Detective Gravina identified several still photographs from the
surveillance video. In particular, Commonwealth’s Exhibit 44
is the still [photo] of the subject that came out of the Chrysler 300 and then walked to the corner to ultimately get into the Crown Victoria in the middle of the road.
Id. at 58. Detective Gravina described that individual as wearing a gray
sweatsuit, and being “[o]n the taller side and skinny.” Id.
During his investigation, Detective Gravina also reviewed surveillance
video from a Shell gas station (the Shell station) in Hockessin, Delaware. Id.
at 88. The video is from February 27, 2020. Id. at 89. According to Detective
Gravina,
the Crown Victoria is observed on the video pulling into the parking lot. And then a gentleman gets out of the car, goes into the [Shell station] and makes a purchase and ultimately leaves towards Pennsylvania.
Id. Detective Gravina identified the Crown Victoria as the same vehicle
depicted in the surveillance videos at the time of the robbery. Id. at 90.
Detective Gravina based his identification on the unique features of the
vehicle, including the window tint, and the faded number eight on the roof.
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Detective Gravina identified the surveillance footage that he had
obtained from the Shell station. Id. Detective Gravina testified the grey ski
cap worn by the man in the Shell station video is the same type of cap that
was recovered by police from the back seat of the Crown Victoria. Id. at 93.
Detective Gravina further identified Appellant’s co-defendant,
Cornelious, from multiple still photographs taken from the Shell station’s
surveillance video. See id. at 100. According to Detective Gravina, the
license plate of the Crown Victoria in the Shell station video has the same
number as the Crown Victoria depicted in the Kennett Square surveillance
videos. Id. at 101.
Detective Gravina testified that police executed a search warrant on the
Chrysler 300, which had been parked in Kennett Square after the robbery.
Id. at 102. Inside the vehicle, police found numerous water bottles, a brandy
bottle, and window tint on the front driver- and passenger-side windows. Id.
at 104-05. In addition, officers found a box of white medical gloves. Id. at
105. Detective Gravina discovered that the Crown Victoria was registered to
Jasmine Britt (Ms. Britt), from Wilmington, Delaware. Id. at 119. Detective
Gravina testified that Appellant is either a current or former paramour of Ms.
Britt. Id. at 123.
License plate surveillance data received from the Delaware River Bay
Police Department showed that the Crown Victoria and Chrysler 300 traveled
at the same time, on the day of the robbery, from Delaware towards
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Pennsylvania. N.T., 4/11/24, at 138-42. Approximately two hours later, the
data showed the Crown Victoria, traveling alone, returning eastbound towards
Delaware. Id. at 142.
On March 9, 2020, a probation officer in Wilmington, Delaware, Matthew
Barba (Officer Barba), notified police that the Crown Victoria was found
abandoned at 11th and Clayton Streets in Wilmington. N.T., 4/10/20, at 126.
The Wilmington Police secured the vehicle, and executed a search warrant on
its contents. Id. at 126. The Crown Victoria similarly had the faded number
eight on its roof, and “cheap government rims” on the wheels. Id. at 130. A
receipt police found inside of the center console, although undated, stated
that
it was received from [Appellant] for $1,000 for [] Cornelious. It indicates that there was a $1500 account with a payment of $1,000, and the balance due is $500. And there is a signature on the bottom, right-hand corner.
Id. at 132. A water bottle and gray knit cap were found in the middle rear
passenger seat, as well as a brandy bottle on the floor. Id. at 133.
During his investigation, Detective Gravina discovered that the Crown
Victoria was owned by Jerome Davis, and appeared to be primarily owned “on
paper” by Cornelious. Id. at 140. Detective Gravina’s investigation revealed
that Cornelious had “a prior paramour relationship” with Jessica McDonald
(Ms. McDonald). Id. Detective Gravina received phone records from Ms.
McDonald’s cell phone. Id. Her phone records showed “heavy
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communication” between Mr. Cornelious and Ms. McDonald, “especially
around the dates in question for this incident.” Id. at 141.
Detective Gravina learned that Ms. McDonald is employed by the
Delaware Cadillac dealership located on Route 52 in Wilmington, Delaware.
Id. Following the robbery, police discovered the Crown Victoria approximately
one and one-half blocks from that Cadillac dealership. Id.
Joseph Kukosky (Mr. Kukosky), a forensic DNA specialist for the
Commonwealth of Pennsylvania and the Pennsylvania State Police, testified
as an expert at trial. N.T., 4/11/24, at 29. Mr. Kukosky testified that
Appellant’s DNA was found on a swab taken from the Crown Victoria’s steering
wheel. Id. at 60-61. Appellant’s DNA also was contained in a DNA mixture
obtained from the Crown Victoria’s gear shift. Id. at 61. Appellant’s DNA
further matched DNA obtained from the water bottle found in the center cup
holder of the Crown Victoria. Id. at 65.
Cornelious’s DNA was found on the steering wheel of the Crown Victoria.
Id. at 53-54. Similarly, his DNA was found on the front, driver-side door
handle of the Crown Victoria. Id. at 54-55. Cornelious’s DNA was found on
the brandy bottle and gray knit cap found in the Crown Victoria. Id. at 56,
67.
Cell phone records obtained from Cornelious indicated that at 10:00
a.m., on February 29, 2020, Ms. Britt called the cell phone used by Cornelious.
Id. at 184. At that time, Appellant’s and Cornelious’s cell phones were located
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in the same general vicinity. Id. At around 11:28 a.m., the “device associated
with [Appellant] is in the general area of Kennett Square, using a tower … off
North Mill Road or North Walnut Street.” Id. at 185.
A review of Appellant’s cell phone data from November 2019 through
mid-March 2020 showed Appellant’s phone in the Kennett Square area only
on the days associated with the robbery. Id. at 192. Testimony established
[o]n March 4th, 2020, [at] about 10:33 [a.m., t]he device associated with [Appellant] is utilizing a cell site just east of Kennett Square Borough. That’s about the same time … the blue Ford Crown Vic[toria] was captured on surveillance footage ….
N.T., 4/11/24, at 186. At about 11:30 a.m., Cornelious’s device “is using a
cell site just south of the Pennsylvania-Delaware line.” Id. at 187-88. Later
that day, between 7:30 and 8:30 p.m., devices owned by Appellant and
Cornelious were in the same general area in Salem, New Jersey. Id. at 189.
On March 5, 2020, at 6:16 a.m., cell phone data shows that Appellant’s
phone is in the area of the Delaware Memorial Bridge. Id. at 195. In addition,
[t]he blue Crown Victoria was captured by [a license plate reader] on the Delaware Memorial Bridge heading west. This cell site location information would be indicative of that same movement….
Id. Appellant’s cell phone data also showed that Appellant’s phone traveled
within 100 meters of the bank. Id. at 199. At 8:34 a.m. that same day,
Appellant’s phone “is moving away from the Borough of Kennett Square.” Id.
at 199-200.
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At 10:13 a.m., the cell phones owned by Appellant and Cornelious are
located within close proximity to each other in New Castle, Delaware. Id. at
202. The cell phone records showed multiple communications between
Cornelious, Ms. McDonald, and Ms. Britt. Id. at 203-04. Cornelious’s cell
phone was
in Salem, New Jersey … the night before [the robbery]. Then it is in Wilmington at 9:12 or 9:13 [p.m.], again, in the area of Delaware Cadillac [dealership] ….
Id. at 204. Appellant’s cell phone was in the same location as Cornelious’s
cell phone at that time. Id. at 205.
Thus, the evidence, both direct and circumstantial, established that
Appellant committed the crime of theft from the bank, by unlawfully taking
“movable property of another with intent to deprive him thereof.” 18
Pa.C.S.A. § 3921(a).
In the course of committing a theft from the bank, Appellant
intentionally placed Ms. Kelp and Ms. Rodriguez in fear of immediate bodily
injury, and demanding and taking about $10,000 from the bank. Thus, the
evidence sufficiently established that Appellant committed two counts of
robbery. See id. § 3701(a)(1)(iv), (vi).
Finally, Appellant committed three counts of criminal conspiracy by
conspiring with Cornelious to commit two counts of robbery and one count of
theft. See id. § 903.
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Based on the foregoing, we agree with Counsel’s conclusion that a
challenge to the sufficiency of the evidence underlying Appellant’s convictions
would merit no relief and is frivolous.
Appellant’s second issue challenges the verdicts as against the weight
of the evidence. Anders Brief at 15-16. Specifically, Appellant challenges
the credibility of the Commonwealth’s witnesses. See id. Counsel would
conclude that these issues merit no relief, because this Court cannot substitute
its own credibility determinations with those of the jury. Id. at 15.
To preserve a weight of the evidence claim, an appellant must raise the
claim “with the trial judge in a motion for a new trial: (1) orally, on the record,
at any time before sentencing; (2) by written motion at any time before
sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). The
failure to preserve a weight claim pursuant to Rule 607 will result in waiver,
even if the trial court addresses the claim in its opinion for this Court.
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014).
Appellant failed to preserve his weight challenge before the trial court.
Accordingly, it is waived. See id.; see also Pa.R.A.P. 302(a) (stating an issue
cannot be raised for the first time on appeal). We therefore conclude that a
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challenge to the weight of the evidence would warrant no relief and would be
frivolous.6
Appellant’s next issue challenges the racial makeup of the jury. Anders
Brief at 16. Appellant points out that he is an African American male, and that
his jury was comprised solely of Caucasian individuals from Chester County.
Id. Appellant claims that he was deprived of his constitutional right to a fair
trial on this basis. Id.
Appellant’s claim appears to be based on the United States Supreme
Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986).
To establish any merit to a Batson claim, [a defendant] must establish a prima facie case of improper use of peremptory challenges [during jury selection]. To do so, a defendant must establish that:
(1) the defendant is a member of a cognizable racial group and the prosecutor exercised peremptory challenges to remove members of the defendant’s race from the venire; (2) the defendant can rely on the fact that the use of peremptory challenges permits “those to discriminate who are [of] a mind to discriminate”; and, (3) the defendant, through facts and circumstances, must raise an inference that the prosecutor excluded members of the venire on account of their race. The third prong requires defendant to make a record specifically identifying the race of all the venirepersons removed by the prosecution, the race of the ____________________________________________
6 Even if Appellant had preserved a challenge, this Court cannot act as a fact-
finder, reweigh the evidence, and disturb credibility findings based on a cold record. See Commonwealth v. Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super. 2021) (“it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded [] evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.” (citations omitted)).
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jurors who served and the race of the jurors acceptable to the Commonwealth who were stricken by the defense. After such a record is established, the trial court must consider the totality of the circumstances to determine whether challenges were used to exclude venirepersons on account of their race. If the trial court finds in the affirmative, it may then require the prosecutor to explain his or her reasons for the challenge. Once the defendant makes a prima facie showing, the burden shifts to the Commonwealth to come forward with a neutral explanation for challenging [Caucasian] jurors.
We note that [t]he striking of a number of individuals belonging to some cognizable minority group, however, is not dispositive that a violation of Batson has occurred.
Commonwealth v. Saunders, 946 A.2d 776, 783 (Pa. Super. 2008)
(citations, footnote, and some quotation marks omitted).
Preliminarily, we note that, at the conclusion of jury selection,
Appellant lodged no objection to the selection of any juror. Because
Appellant failed to object on the record to the jury empaneled, or to any
peremptory strike by the Commonwealth, this issue is waived on appeal and
is frivolous. See Pa.R.A.P. 302(a); Commonwealth v. Burns, 765 A.2d
1144, 1148 (Pa. Super. 2000) (waiving a challenge to the striking of a juror
where appellant failed to object on the record, pursuant to Rule 302(a)).
In his final issue, Appellant claims his trial counsel rendered ineffective
assistance. Anders Brief at 17. With respect to ineffectiveness claims, our
Supreme Court has explained that “as a general rule, a petitioner should wait
to raise claims of ineffective assistance of trial counsel until collateral review.”
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). The Pennsylvania
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Supreme Court has recognized three exceptions to this general rule. See
Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013);
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).
The first exception applies to extraordinary circumstances, when a “trial
court, in the exercise of its discretion, determines that a claim [] of
ineffectiveness is both meritorious and apparent from the record so that
immediate consideration and relief is warranted.” Holmes, 79 A.3d at 577-
78. The second exception addresses “multiple and fairly common
ineffectiveness claims,” which are accompanied by the defendant’s “knowing,
voluntary, and express waiver of [Post Conviction Relief Act (“PCRA”) 7]
review.” Id. at 577-78, 580 (footnote added). The third exception requires
“trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” See Delgros, 183 A.3d at 361. To qualify for any of these
exceptions, an appellant must first raise his ineffectiveness claims
before the trial court, as the trial court must have an opportunity to review
such a claim and for the parties to fully develop the record. Delgros, 183
A.3d at 360-62; Holmes, 79 A.3d at 576.
7 42 Pa.C.S.A. §§ 9541-9546.
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Appellant failed to raise his ineffectiveness claim before the trial court.
Accordingly, it is waived on direct appeal.8 We agree with Counsel’s
assessment that this claim is therefore meritless and frivolous.
Finally, our independent review discloses no other non-frivolous issues
that could be raised by Appellant on direct appeal. See Falcey, 310 A.3d at
315. Accordingly, we grant Counsel’s request to withdraw from representation
Petition to withdraw granted. Judgment of sentence affirmed.
Date: 6/3/2025
8 Appellant may, however, present his ineffectiveness claims in a timely filed
petition for relief under the PCRA.
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