Com. v. Millender, W.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

WILLIAM THOMAS MILLENDER, Appellant No. 1686 WDA 2013

Appeal from the Judgment of Sentence September 4, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s):

CP-02-CR-0013237-2011

CP-02-CR-0015480-2011

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J. MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 06, 2015 Appellant, William Thomas Millender, appeals from the judgment of sentence of an aggregate term of 3½ to 7 years’ imprisonment, imposed after he was convicted of various counts of robbery, conspiracy, receiving stolen property and recklessly endangering another person.1 Appellant challenges the sufficiency of the evidence to sustain his convictions and alleges the verdict is against the weight of the evidence. We affirm.

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1 Appellant was found guilty at CC Number 201115480 of one count each of robbery (18 Pa.C.S. § 3701(a)(1)(i)), conspiracy (18 Pa.C.S. § 903(c)), receiving stolen property (18 Pa.C.S. § 3925(a)), and recklessly endangering another person (18 Pa.C.S. § 2705). Furthermore, Appellant was found guilty at CC Number 201113237 of one count of robbery (18 Pa.C.S. § 3701(a)(1)(i)) and one count of conspiracy (18 Pa.C.S. § 903(c)). CC Nos. 201115480 and 201113237 were joined by the trial court for trial.

Appellant’s convictions stemmed from two robberies that occurred within approximately 7 hours of each other, involving the same co- conspirators. Following a non-jury trial, Appellant was sentenced to the above-stated term on September 4, 2013. He filed a timely notice of appeal, followed by a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).2 Herein, Appellant presents two issues for our review, which we summarize as follows: (1) Was the evidence sufficient to support the conviction at CC Number 201113237, where the evidence failed to establish that Appellant entered into any agreement to commit robbery, or that he committed an overt act in furtherance of a conspiracy, but only that he was present at the scene and allegedly acquainted with the perpetrator; and (2) Did the trial court abuse its discretion when it denied Appellant’s post-sentence motion, challenging the weight of the evidence, as

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2 The court entered an order on October 28, 2013, directing a statement of matters complained of on appeal to be filed within 21 days pursuant to Rule 1925(b). Appellant’s Rule 1925(b) statement was filed on November 20, 2013, which appears on its face to be untimely. However, the trial court does not acknowledge the untimeliness of the Rule 1925(b) statement. Rather, the trial court treats the Rule 1925(b) statement as timely and addresses the merits of the issues raised by Appellant in its Rule 1925(a) opinion. We will, therefore, overlook the untimeliness of the Rule 1925(b) statement and address the merits of the issues presented on appeal. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) (“When counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues we need not remand and may address the merits of the issues presented.”).

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the identifications of Appellant were so unreliable that they should not have been afforded any weight? See Appellant’s Brief, at 6.

To begin, we note our standard of review of a challenge to the sufficiency of the evidence:

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).

Appellant challenges the sufficiency of evidence to support his conviction of robbery under 18 Pa.C.S. § 3701(a)(1)(v), which states: “A person is guilty of robbery if, in the course of committing a theft, he physically takes or removes property from the person of another by force however slight.” Additionally, Appellant challenges the sufficiency of the evidence to sustain his conviction of conspiracy to commit robbery. A conviction of criminal conspiracy requires proof “that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent[,] and (3) an overt act was done in furtherance of the conspiracy.” Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citing Commonwealth v. Hennigan,

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753 A.2d 245, 253 (Pa. Super. 2000)). “This overt act need not be committed by the defendant; it need only be committed by a co- conspirator.” Id. (quoting Commonwealth v. Hennigan, 753 A.2d at 253.)

Before addressing whether the elements of the above-stated crimes have been met, we review the facts of the incidents which led to Appellant’s convictions, as set forth by the trial court in the following portion of its Rule 1925(a) opinion:

At trial, Mr. Landon Thomas testified that he was on the way home from work when he was confronted by three men near the Wilkinsburg bus way. One of the men pulled a gun and demanded his phone. All three men pulled Mr. Thomas to the side of a building, checked his wallet, and took change and his transit, along with his cell phone. Mr. Thomas said he was scared, as it was the first time ever that a gun was pulled on him. Mr. Thomas also testified that his Oakland raiders hat was taken, which he was wearing at the time…. The man with the gun took it off [Mr. Thomas’] head and gave it to his accomplice.

The gunman put the gun in Mr. Thomas’ face and told him to “get up the street before I shoot you in the face” as the three men went toward the bus way. Mr. Thomas recognized the phone depicted in a photo, Exhibit 9, as being the one taken from him that night.

In photo Exhibit 7, Mr. [Thomas] identified the man who was wearing his Raiders hat, who helped go through the process of checking the victim’s pockets and ba[g]. Mr. [Thomas]

walked home after the robbery and called police, who responded and took him to the crime scene, and later to the police station.

[Appellant] was identified as being the person who “assisted the guy with the firearm[,”] and who was wearing the victim’s hat.

The Commonwealth next called Norman Beasley, [a minister]… who testified that at approximately 4:00 a.m. on September 30, 2011, he was in the area of East Liberty Circle and Penn Avenue. He observed three young men cross the

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street toward him, and he in turn, decided to cross the street to get away from the[m]. Mr. Beasley was punched from behind in a dark area of the street by a young man who then took [Mr.]

Beasley’s cell phone, which had fallen to the ground. Mr.

Beasley asked for his phone back, and then observed two (2)

other men standing near the entrance to a nearby Target store, one of [whom] was [Appellant]. The man who took the phone then ran toward [Appellant] and the other man at the Target store and all three (3) took off together. Mr. Beasley flagged down a passing police car and the officer placed him in his car after [Mr.] Beasley related what happened earlier. The officer drove toward a Giant Eagle grocery store where three (3)

individuals were confronted and apprehended. Mr. Beasley confirmed that the three (3) men, one of whom was [Appellant], were the same individuals who took his phone and ran from him.

Several hours later, Mr. Beasley’s phone was recovered from underneath a car parked in a lot approximately fifty yards from the Giant Eagle store where [Appellant] was apprehended earlier that morning.

Trial Court Opinion (TCO), 10/20/14, at 3-5 (citations to the record omitted).

The trial court also details the following evidence and stipulations made by Appellant at trial that it considered in reaching its verdict:

At trial, the [c]ourt considered as evidence a video of the East Bus Way Station in Wilkinsburg, identifying [Appellant], William Millender, and two other individuals, Steven Wallace and Roderick Cook getting on a westbound bus on September 29, 2011 between 9:08 p.m. and 9:22 p.m. [Appellant’s] counsel stipulated to the identity of [Appellant]. Another stipulation was reached that [Appellant] appeared in photos introduced as Commonwealth exhibits 2 through 8. Another stipulation was reached that City of Pittsburgh Police Officer Dominic Nino recovered a pink Blackberry from the person of Steven Wallace at approximately 4:30 a.m. on September 30, 2011 near Penn Avenue in the Shadyside-East Liberty neighborhood.

TCO, at 3 (citations to the record omitted).

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On appeal, Appellant solely challenges the sufficiency of the evidence to sustain his conspiracy conviction related to the robbery of Mr. Beasley. Specifically, he avers that the Commonwealth failed to prove that “[he] entered into an agreement to take [Mr.] Beasley’s cell phone, or commit an overt act in furtherance of a conspiracy.” Appellant’s Brief, at 16. Appellant further contends that he was merely present at the scene, and that mere presence at the scene of a crime is insufficient to establish conspiracy. Id.

“The Commonwealth is not required to establish the existence of a conspiracy by direct proof of an explicit or formal agreement.” Commonwealth v. Roux, 350 A.2d 867, 870 (Pa. 1976). “[W]hile more than mere association must be shown, ‘[a] conspiracy may be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed….’” Id. (quoting Commonwealth v. Horvath, 144 A.2d 489, 492 (Pa. Super. 1958)). Furthermore:

mere presence at the scene of a crime and knowledge of the commission of criminal acts is not sufficient [to establish a conspiracy]. Nor is flight from the scene of a crime, without more, enough. However, such factors, combined with other direct or circumstantial evidence, may provide sufficient evidence sustaining [a conspiracy conviction].

In re V.C., 66 A.3d 341, 349-350 (Pa. Super. 2013) (citing Commonwealth v. Knox, 50 A.3d 749, 756 (Pa. Super. 2012)).

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In the case at bar, we conclude that the totality of the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to sustain Appellant’s convictions for robbery and conspiracy to commit robbery. Although Appellant asserts that he was not an active participant in the crime against Mr. Beasley, and that he was merely standing across the street during the incident, Appellant did actively participate in the robbery of Mr. Thomas. Appellant was identified as the man who searched through Mr. Thomas’ pockets and bag. TCO, at 4. Appellant stipulated to his identity in a bus station surveillance video near the scene of the robbery against Mr. Thomas just minutes after the robbery took place. Id. at 3. In the video, he was wearing the hat stolen from Mr. Thomas. Appellant was present at the bus station with his co-conspirators, Mr. Wallace and Mr. Cook, and Appellant remained with his co-conspirators hours later at the scene of the robbery against Mr. Beasley. Id. at 3, 4. We especially emphasize the fact that Mr. Beasley testified that after he was robbed by Appellant’s cohort, Appellant fled the crime scene with Mr. Wallace and Mr. Cook. Id. at 4. Additionally, when police apprehended Appellant and his co-conspirators shortly after the Beasley robbery, Appellant was still wearing the Raiders hat which had been taken from Mr. Thomas during the prior incident. Id. at 4, 5.

Taken as a whole, this evidence was sufficient to support the trial court’s finding that Appellant entered into an agreement with Mr. Wallace and Mr. Cook, that Appellant shared the criminal intent to rob Mr. Beasley, and that an overt act was committed in furtherance of the conspiracy.

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Therefore, the trial court reasonably found that the elements of conspiracy were met.

Moreover, once it has been found that an agreement was entered into and that “the defendant intentionally entered into the agreement, that defendant may be liable for the overt acts committed in furtherance of the conspiracy regardless of which co-conspirator committed the act.” Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (citation omitted). See also Commonwealth v. Figueroa, 859 A.2d 793, 798-799 (Pa. Super. 2004) (citations omitted) (“Even if a defendant did not act as a principal in committing the underlying crime, . . . he is still criminally liable for the actions of the co-conspirator taken in furtherance of the conspiracy.”). Consequently, Mr. Beasley’s testimony that Appellant’s co- conspirator took his cell phone after punching Mr. Beasley from behind supports Appellant’s conviction for robbery.

Appellant next challenges the weight of the evidence to support his convictions.

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

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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).

Here, Appellant’s basis for his weight of the evidence claim is that “[Mr.] Thomas’ only identification of [Appellant] was made for the first time on the day of trial, when he was the only defendant in the courtroom sitting next to defense counsel, and [Mr.] Thomas said he did not recognize [Appellant] when they were face to face at the preliminary hearing. Moreover, [Mr.] Beasley misidentified [Appellant] just minutes after the incident.” Appellant’s Brief, at 24.

The trial court considered the testimony presented at trial and found the testimony of the victims to be credible. TCO, at 5. “[O]n issues of credibility and weight of the evidence, an appellate court defers to the findings of the trial judge, who has had the opportunity to observe the proceedings and demeanor of the witnesses.” Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). The trial court, as fact finder, concluded that the elements of robbery and conspiracy to commit robbery were proven beyond a reasonable doubt, and that Appellant committed these offenses. TCO, at 5. We ascertain no abuse of discretion in the trial court’s denial of Appellant’s challenge to the weight of the evidence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/6/2015

Circulated 03/12/2015 01:19 PM

Circulated 03/12/2015 01:19 PM

Circulated 03/12/2015 01:19 PM

Circulated 03/12/2015 01:19 PM