Com. v. Holmes, Z.

• Court: Superior Court of Pennsylvania
• Decided: September 28, 2020
• Docket: 822 MDA 2019
• Status: Unpublished

Opinion

J-S67024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ZAKI JAMAR HOLMES : : Appellant : No. 822 MDA 2019

Appeal from the Judgment of Sentence Entered March 1, 2018 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000131-2017

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 28, 2020

Appellant, Zaki Jamar Holmes, appeals from the March 1, 2018

Judgment of Sentence entered in the York County Court of Common Pleas

following his conviction of one count each of Robbery, Person Not to Possess

a Firearm, Terroristic Threats, Simple Assault – Physical Menace, and Theft by

Unlawful Taking.1 He challenges the sufficiency and weight of the evidence.

After careful review, we affirm.

We glean the following factual and procedural history from the trial

court’s Opinion and our de novo review of the record. Appellant was friends

with Elizabeth Smith’s children for over ten years. On the evening of October

23, 2016, he stopped by Ms. Smith’s house in York City for a short visit with ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(iii), 6105(a)(1), 2706(a)(1), 2701(a)(3) and 3921(a), respectively. J-S67024-19

her son. Approximately 15 minutes after leaving, Appellant returned to the

home with another man, each of whom had a hooded sweatshirt (“hoodie”)

tied tightly around his face. Ms. Smith, her two daughters, Croatia Coleman

and Tatijuana Coleman, and five of her grandchildren were in the living room

at the time. Pointing guns at the women, the men demanded their wallets

and purses. One of the men grabbed a cell phone from Croatia’s hands while

she was on a call. Ms. Smith refused to give the men her wallet, so Appellant

pointed the gun at the grandchildren and threatened to shoot them. She then

gave him her wallet, which contained $242 in cash, and the men ran out of

the house. Ms. Smith immediately called 911.

Although Appellant’s face had been hidden by the tied hoodie, Ms. Smith

recognized him by his voice, build, and sweatshirt. When police officers

arrived shortly after the robbery, she described the assailants to York City

Police Officer Chistopher Hustid and showed him a picture of Appellant from

Facebook. Croatia and Tatijuana refused to speak to Officer Hustid: they

would not tell him their names; Croatia refused to tell him the cell phone

number of the phone that was stolen from her hand; and they both refused

to discuss the robbery with him.

The Commonwealth arrested Appellant on November 1, 2016, and

charged him with the above crimes. At the preliminary hearing on January 4,

2017, Ms. Smith testified that Appellant wore a dark gray hoodie during the

robbery and the other man wore a black hoodie.

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A jury trial proceeded on January 3, 2018, at which Ms. Smith and

Officer Christopher Hustid testified. Ms. Smith testified that she has known

Appellant for between 10 to 15 years, and had recognized Appellant during

the robbery from his voice and sweatshirt because he had been at her house

approximately 10 to 15 minutes before the robbery. She also said that the

other man had on a gray hoodie while Appellant’s sweatshirt was black and

that Appellant did not have facial hair that day.

On cross-examination, when presented with her preliminary hearing

testimony, Ms. Smith corrected her trial testimony and said it was Appellant

in the dark gray hoodie and the other man in the black hoodie.2

Officer Hustid testified regarding his response to the incident. On cross-

examination, he stated that Ms. Smith told him on the day of the incident that

Appellant had a thin moustache.

The jury found Appellant guilty of all charges. The court deferred

sentencing pending a pre-sentence investigation (“PSI”) report. Following

consideration of the PSI Report and argument of counsel, the court sentenced ____________________________________________

2 Croatia Coleman appeared at trial as an uncooperative witness pursuant to the Commonwealth’s subpoena. She testified she was not really paying attention during the robbery because she was on the phone until one of the two men snatched it from her. She also stated that she did notice one of the men threatening to shoot her children. She provided no testimony regarding the identity of the robbers except to say they were two males. She stated she had known Appellant for approximately 14 years, since she was a child, and had seen him just a month before trial in a passing car and “synced” with him. N.T. Trial, 1/3/18, at 85-89.

The Commonwealth had also issued a subpoena to Tatijuana to testify at trial but she did not appear. Id. at 107.

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Appellant to a standard range sentence of eight to sixteen years’ incarceration.

Appellant filed a Post-Sentence Motion, which the court denied.

Appellant timely appealed. However, this Court ultimately quashed his

appeal because of his failure to file a docketing statement in compliance with

Pa.R.A.P. 3517. Appellant then filed a Petition for Post-Conviction Collateral

Relief, and on April 22, 2019, the trial court reinstated his appeal rights nunc

pro tunc.

Appellant filed a counseled Notice of Appeal on May 17, 2019. On May

21, 2019, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

Statement within 21 days. Appellant did not file a Rule 1925(b) Statement.

The trial court filed a Pa.R.A.P. 1925(a) Opinion, observing that Appellant’s

counsel provided per se ineffective assistance by failing to file the ordered

Rule 1925(b) Statement. This Court agreed and on December 26, 2019,

remanded the case back to the trial court for counsel to file a Rule 1925(b)

Statement nunc pro tunc and for the trial court to file a responsive Rule

1925(a) Opinion.

On January 23, 2020, the trial court appointed new appellate counsel.

After receiving an extension, Appellant filed his Rule 1925(b) Statement on

April 7, 2020, challenging the sufficiency and weight of the evidence

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supporting his identity as one of the assailants. The trial court filed a Rule

1925(a) Opinion on May 18, 2020.3

Appellant raises the following issues for our review:

1. Whether there existed sufficient evidence that the Appellant was the individual that committed the Robbery and related offenses as only the sound of his voice was used to describe him and conflicting descriptions of the sole identifying witness as to his clothing and facial hair existed?

2. Whether the verdict was against the weight of the evidence as only the sound of the Appellant’s voice was used to describe him and conflicting descriptions of the sole identifying witness as to his clothing and facial hair existed?

Appellant’s Br. at 4.

Sufficiency of the Evidence

In his first issue, Appellant does not challenge the evidence that

supports the statutory elements of his crimes. Rather, he challenges only the

evidence supporting his identification as one of the assailants. See Appellant’s

Br. at 13 (stating “[h]erein, we have disparity between facial hair of the

accomplice and the hoodie being worn.” (no citation to record provided)).

“A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We

review claims regarding the sufficiency of the evidence by considering

____________________________________________

3 Both Appellant and the Commonwealth requested and received extensions to file their respective appellate Briefs. The Commonwealth ultimately filed a Brief on September 9, 2020.

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whether, viewing all the evidence admitted at trial in the light most favorable

to the verdict winner, there is sufficient evidence to enable the fact-finder to

find every element of the crime beyond a reasonable

doubt.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)

(internal quotation marks and citation omitted).

“Further a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—is free to believe all, part, or none of the

evidence.” Id. “In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for the fact-finder.” Id.

With respect to the issue of identification as the basis for challenges to

the sufficiency of the evidence supporting a conviction,

our courts have held that evidence of identification needn't be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight. Similarly, although identification based solely on common items of clothing and general physical characteristics is insufficient to support a conviction, such evidence may be considered to establish identity along with other circumstances and the proffered identification testimony[.]

Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 1983) (internal

punctuation and citations omitted).

In addition, a victim’s identification of an assailant within minutes of the

crime is a significant factor to be considered as part of the totality of the

evidence. Commonwealth v. Orr, 38 A.3d 868, 871, 874 (Pa. Super. 2011).

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In addressing Appellant’s sufficiency challenge, the trial court observed

that the jury found Ms. Smith’s testimony credible. Trial Ct. Op., 5/18/20, at

at 9-10. The court specifically noted that (1) Ms. Smith had known Appellant

for ten or fifteen years because he was a friend of her son; (2) Appellant had

been at her house a mere fifteen minutes before the robbery occurred; and

(3) she immediately recognized Appellant’s voice when he spoke during the

robbery.4 Id. at 9. In light of this testimony and other evidence, the court

concluded that the Commonwealth presented sufficient evidence for the jury

to conclude that Appellant was guilty of the crimes charged. Trial Ct. Op at

10-13.

Our de novo review of the record, viewed in the light most favorable to

the Commonwealth, supports the court’s conclusion. At no time did Ms. Smith

exhibit any uncertainty in identifying Appellant as one of the robbers. Ms.

Smith had known Appellant for at least 10 years, and Appellant had been

visiting her son in her house just minutes before the robbery wearing the same

sweatshirt he had on during the robbery. During the robbery, she recognized

Appellant’s voice and physical build. See N.T., 1/3/18, at 90-103.

Immediately after the robbery, Ms. Smith identified Appellant to Officer Hustid

4 The trial court also addressed the elements of each crime and the evidence presented to conclude that the Commonwealth presented sufficient evidence to support the jury’s verdicts. Appellant has not addressed the elements of the crimes; accordingly, any challenges he may have raised for appellate review with respect to the evidence supporting the specific elements of each crime are waived. See Pa.R.A.P. 302(a).

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by describing Appellant physically, stating she recognized Appellant’s voice,

and showing Officer Hustid a picture of Appellant posted on Facebook. N.T.,

1/3/18, at 114-15. Moreover, Ms. Smith identified Appellant without

hesitation at both the preliminary hearing and the trial as one of the assailants

after reiterating she had immediately recognized his voice. When presented

during cross-examination with her preliminary hearing testimony, she

acknowledged that she had misspoken regarding Appellant’s clothing during

her direct testimony and stated that it was Appellant wearing the dark gray

hoodie and the other man who wore the black hoodie. See id. at 105-06.

Appellant attempts to challenge the sufficiency of the evidence by

highlighting the inconsistency in Ms. Smith’s testimony about the clothing

worn by the assailants, and her trial testimony, contradicted by Officer Hustid,

that on the day of the crime, Appellant had no facial hair. This argument

minimizes the undisputed fact of Ms. Smith’s longstanding acquaintance with

Appellant and her unwavering recognition of his voice. Appellant’s emphasis

on inconsistent testimony fails to convince this Court that the jury’s verdicts

were not supported by sufficient evidence. See, e.g., Commonwealth v.

Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (denying sufficiency challenge

where it was based on the fact that two witnesses displayed uncertainty at

trial as to the appellant’s identity after having made previous positive

identifications).

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Moreover, Appellant’s argument raises a challenge to the weight of the

evidence, which we address below. Based on the foregoing, Appellant’s

challenge to the sufficiency of the evidence warrants no relief.

Weight of the Evidence

Appellant next contends the verdict was against the weight of the

evidence, relying on the same argument he presented in his sufficiency

challenge, in addition to a bald averment that the evidence showed “variations

and questions of who the actual possessor of the firearm and robbery assailant

to have a true rendering of the facts supporting a verdict.” Appellant’s Br. at

15 (verbatim; no citation to record provided).5 No relief is due.

When considering challenges to the weight of the evidence, courts apply

the following principles. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

5 We note that nowhere else in his Brief did Appellant mention any variation in testimony regarding who had firearms. Our review of the record reveals none; in fact, Ms. Smith testified that both assailants had guns. See N.T. at 94.

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Further, appellate review of a weight claim is a review of the trial court’s

exercise of discretion in denying the appellant’s post sentence motion

requesting a new trial based on the weight of the evidence. Id. at 545-46.

This Court does not review the underlying question of whether the verdict is

against the weight of the evidence. Id. “Because the trial judge has had the

opportunity to hear and see the evidence presented, an appellate court will

give the gravest consideration to the findings and reasons advanced by the

trial judge when reviewing a trial court’s determination that the verdict is [or

is not] against the weight of the evidence.” Id. at 546 (citation omitted). “One

of the least assailable reasons for granting or denying a new trial is the lower

court’s conviction that the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the interest of justice.” Id.

(citation omitted).

Additionally, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague[,] and

uncertain that the verdict shocks the conscience of the court.” Id. (internal

quotation marks and citation omitted). As our Supreme Court has made clear,

reversal is only appropriate “where the facts and inferences disclose a palpable

abuse of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.

2014) (citations and emphasis omitted).

Appellant is asking this Court to reweigh the record evidence and resolve

inconsistencies in his favor. Because this Court is not the fact-finder, we

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cannot and will not do so. Hopkins, supra. In addition, the verdict does not

shock the conscience of this Court and we discern no abuse of discretion in

the trial court’s denial of Appellant’s Post Sentence Motion. Accordingly, this

claim fails.

Because we find no merit in Appellant’s sufficiency and weight

challenges, we affirm the Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/28/2020

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