Com. v. Randolph, T.

• Court: Superior Court of Pennsylvania
• Decided: October 20, 2022
• Docket: 1371 MDA 2021
• Status: Unpublished

Opinion

J-A19003-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYRESE ANDRE RANDOLPH : : Appellant : No. 1371 MDA 2021

Appeal from the Judgment of Sentence Entered September 30, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004940-2019

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: OCTOBER 20, 2022

Tyrese Andre Randolph appeals from the September 30, 2021 judgment

of sentence of life imprisonment plus a consecutive term of ten to twenty years

of imprisonment for second-degree murder, robbery, and conspiracy to

commit robbery. We affirm.

On September 5, 2019, at approximately 7:00 a.m., Dennis Early, Jr.,

discovered a dead body in the Harrisburg Civil War Museum parking lot and

called 911. See N.T. Jury Trial, 6/21/21-6/23/21, at 71-73. Detectives

William Kimmick, III, and Christopher Silvio of the Harrisburg Police

Department quickly arrived on scene, immediately observing a deceased male

who had suffered two gunshot wounds to the face. The detectives were able

to identify the deceased male as Torin Dworchak (“the victim”), based, in part,

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A19003-22

on the contents of a backpack lying nearby, which contained the victim’s high

school report card. A subsequent autopsy confirmed that the victim died from

two fatal gunshot wounds to the face. Id. at 150, 153. Further investigation

revealed that the victim drove a 2010 Mazda 3 that was registered to the

victim’s mother, Angel Harris, and his stepfather. Accordingly, Detective Silvio

put out a “be on the lookout” (“BOLO”) for the vehicle. Id. at 163.

Around 12:45 p.m. the same day, Detective Silvio was notified that the

victim’s vehicle had been found next to 2447 Duke Street in the City of

Harrisburg. Detective Silvio called Ms. Harris to obtain consent to search the

vehicle, which she gave. Id. at 167. Thereafter, Detective Kimmick and

another investigator responded to 2447 Duke Street and processed the

outside of the victim’s vehicle. They noted blood on the rear bumper and lifted

fifteen latent prints suitable for comparison from the vehicle’s exterior. Id. at

102-04, 116. While most of these prints belonged to the victim, a palm print

from the hood of the car was later determined to belong to Appellant and two

prints lifted off the trunk were attributed to Nathaniel Acevedo (“co-

defendant”). At the police station, police processed the inside of the vehicle.

Id. at 103. Inside the trunk, Detective Kimmick observed blood spatter and

a large amount of blood in the wheel well. Id. at 107, 111. Detective Kimmick

also discovered blood on the driver’s floor mat, steering wheel, and gear shift.

Id. at 146.

Contemporaneously, Detective Silvio went to Ms. Harris’s house. Id.

Upon arrival, Ms. Harris provided bank account statements showing that the

-2- J-A19003-22

victim’s VISA debit card had recently been used at two clothing stores at the

Harrisburg Mall: Journeys and Jump Sportswear. Id. at 169. Detective Silvio

directed officers to the Harrisburg Mall to retrieve receipts and surveillance

video from the two stores. While he was still reviewing the records with

Ms. Harris, a third charge appeared from Choice Cigarette Outlet, which was

a convenience store not located inside the mall. Id. at 169. Detective Silvio

sent officers to retrieve surveillance footage and a receipt from this store. Id.

at 176.

Detectives quickly received a still photograph from Jump Sportswear,

depicting Appellant and an unknown male using the victim’s debit card to

make a $135.95 purchase. Id. at 169-70. This photograph prompted

detectives to seek out Appellant for questioning. At approximately 6:00 p.m.,

officers located Appellant and asked him to consent to an interview. Appellant

agreed to be interviewed and the officers transported him to the police station.

Id. at 177-78. During the interview, Detective Silvio showed Appellant the

still photograph they had received from Jump Sportswear. Appellant

immediately identified himself and the other male in the photograph as co-

defendant. Id. at 183-87, 198-99. When asked about his connection to co-

defendant, Appellant explained that he had not seen co-defendant in several

weeks but came to the mall after co-defendant asked him to hang out.

Appellant confirmed that he was holding a Journeys bag in the picture, but

claimed he was holding it for co-defendant. Id. at 187. The victim was not

mentioned by the officers or Appellant. After Appellant finished providing this

-3- J-A19003-22

statement, the officers took him home and continued investigating co-

defendant.

The detectives also reviewed surveillance footage surrounding a

purchase the victim made at Sheetz from the night of the homicide. Id. at

170. The video footage showed the victim and Appellant arriving at Sheetz

together around 9:00 p.m. on September 4, 2019, in the victim’s Mazda 3.

The victim used the ATM, while Appellant looked on, before the two men

purchased something at the counter with the victim’s debit card. The two

men then walked back to victim’s vehicle, where the victim pumped gas before

they left the area.

Based on the new information, officers returned to Appellant’s home and

retrieved him for a second interview on September 5, 2019. Id. at 207.

Appellant characterized the victim as a “close friend” and admitted to going to

Sheetz with him on September 4, 2019. Id. at 212. Afterwards, Appellant

alleged that they returned to his house where they smoked marijuana

together. Id. at 207. Thereafter, the victim left his house stating that he

“had to go somewhere” and never returned. Id. at 208. Appellant also

maintained that co-defendant made all the mall purchases but conceded for

the first time that co-defendant had gifted several items to him. Based on the

surveillance footage and Appellant’s own statements, he was arrested and

charged with access device fraud.

A search warrant of his residence uncovered some of the clothing

Appellant was wearing at Sheetz and items that were purchased at the mall

-4- J-A19003-22

with the victim’s debit card. As the officers received and reviewed the

surveillance footage and receipts from the various purchases, they were able

to confirm that Appellant and co-defendant made all the purchases with the

victim’s debit card together.

On September 11, 2019, the detectives brought Appellant in for a third

round of voluntary questioning. Id. at 220. For the first time, Appellant

admitted that he set up the robbery of the victim with co-defendant. His plan

included taking the victim to Sheetz so that he could learn his PIN for the debit

card. However, Appellant claimed that the plan did not include kidnapping or

murder, because he made co-defendant promise not to hurt the victim. After

Appellant and the victim returned to Appellant’s house from Sheetz, he briefly

left the vehicle to retrieve co-defendant who then robbed the victim at

gunpoint. Co-defendant then ordered the victim into the trunk of the vehicle,

while co-defendant drove all three men around the city in the victim’s Mazda

3. A short time later, co-defendant parked the vehicle and returned to the

trunk where he executed the victim while Appellant remained in the front

passenger seat.

Afterwards, Appellant and co-defendant drove to City Gas and Diesel

where they unsuccessfully attempted to access the victim’s bank account.

Thereafter, co-defendant dropped Appellant off at home before dumping the

victim’s body in the Civil War Museum parking lot and ditching the vehicle on

Duke Street. After the homicide, Appellant attempted to call and text the

victim inquiring about his whereabouts to cover up that he had been

-5- J-A19003-22

murdered. Id. at 243. Based on Appellant’s third statement, he was charged

with the remaining aforementioned counts. Surveillance footage and receipts

from the City Gas and Diesel confirmed that, while co-defendant looked on,

Appellant twice attempted to use the victim’s debit card at the ATM inside the

City Gas and Diesel at 10:42 p.m. on the night of the murder. Both attempts

were unsuccessful.

On July 21, 2021, Appellant proceeded to a jury trial at which he did not

contest the robbery or conspiracy to commit robbery charges.1 Id. at 310.

Instead, he contended that he was innocent of murder because it occurred

after the robbery was complete and was the result of co-defendant going

“rogue.” Id. at 315. At the conclusion of trial, the jury found Appellant guilty

of second-degree murder, robbery, and conspiracy to commit robbery. On

September 30, 2021, the trial court sentenced Appellant to life imprisonment

for second-degree murder and consecutive sentences of five to ten years for

the two remaining counts. This timely appeal followed. Both Appellant and

the trial court complied with the mandates of Pa.R.A.P. 1925.

Appellant presents one issue for our review: “Whether the evidence was

insufficient to support a conviction for second-degree murder when the

evidence shows the perpetration of the predicate felony which [Appellant]

agreed to ended and any subsequent felony was done entirely by [Appellant’s]

co-defendant?” Appellant’s brief at 4.

1 Co-defendant was tried separately.

-6- J-A19003-22

Our standard of review when considering a challenge to the sufficiency

of the evidence is as follows:

[w]hether 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. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)

(citations and quotation marks omitted).

“A criminal homicide constitutes murder of the second degree when it is

committed while [the] defendant was engaged as a principal or accomplice in

the perpetration of a felony.” See Commonwealth v. Knox, 50 A.3d 749,

754 (Pa.Super. 2012); see also 18 Pa.C.S. § 2502(b). “Perpetration of a

felony” is defined as “[t]he act of the defendant in engaging in or being an

accomplice in the commission of, or an attempt to commit, or flight after

committing, or attempting to commit robbery, rape, or deviate sexual

intercourse by force or threat of force, arson, burglary or kidnapping.” Id. at

-7- J-A19003-22

754-55 (quoting 18 Pa.C.S. § 2502(d)). A person is an accomplice, and

“equally criminally liable for the acts of another if he acts with the intent of

promoting or facilitating the commission of an offense and agrees, aids, or

attempts to aid such other person in either planning or committing that

offense.” Commonwealth v. Chambers, 188 A.3d 400, 415 (Pa. 2018).

Accomplice liability “may be established wholly by circumstantial evidence.

Only ‘the least degree of concert or collusion in the commission of the offense

is sufficient to sustain a finding of responsibility as an accomplice.’ No

agreement is required, only aid.” Knox, supra at 739.

Instantly, the predicate felony underlying Appellant’s second-degree

murder conviction was robbery – threaten immediate serious injury. “A

person is guilty of robbery if, in the course of committing a theft,

he . . . threatens another with or intentionally puts him in fear of immediate

serious bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii). “An act shall be deemed

‘in the course of committing a theft’ if it occurs in an attempt to commit theft

or in flight after the attempt or commission.” Id. at § 3701(a)(2). A

defendant also may be guilty of robbery as an accomplice or co-conspirator

as long as the defendant possessed the requisite mens rea to commit the

criminal act and the additional elements of accomplice liability or conspiratorial

liability are established. See Commonwealth v. Mitchell, 135 A.3d 1097,

1102 (Pa.Super. 2016).

-8- J-A19003-22

A person is a conspirator if “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. Devine, 26 A.3d 1139, 1147

(Pa.Super. 2011). “The conduct of the parties and the circumstances

surrounding such conduct may create a web of evidence linking the accused

to the alleged conspiracy beyond a reasonable doubt.” Id. “Once there is

evidence of the presence of a conspiracy, conspirators are liable for acts of

co-conspirators committed in furtherance of the conspiracy.”

Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa.Super. 2002) (en

banc). Therefore, in the context of murder, for example, even if an individual

did not contemplate murder, where such a killing is completed by a co-

conspirator in furtherance of the felony that was the object of the conspiracy,

murder is not beyond the scope of the conspiracy. Id.

Appellant does not dispute that, as an accomplice to co-defendant, he

is criminally liable for any actions they took in furtherance of the robbery. See

Appellant’s brief at 30-31. Appellant also agrees that he engaged in a

conspiracy to commit robbery with co-defendant. Id. However, Appellant

argues that the Commonwealth failed to demonstrate that the killing was

committed in perpetration of or in order to facilitate the robbery, requirements

common to both accomplice and co-conspirator liability. Id. We disagree.

-9- J-A19003-22

Here, the evidence, viewed in the light most favorable to the

Commonwealth, showed that the victim was killed while Appellant and co-

defendant were still in the midst of committing their planned robbery. See

18 Pa.C.S. § 3701(a)(2) (“an act shall be deemed ‘in the course of committing

a theft’ if it occurs in an attempt to commit theft or in flight after the attempt

or commission.”) (emphasis added). At trial, the Commonwealth presented

evidence that Appellant formulated the plan to rob the victim with co-

defendant. See N.T. Jury Trial, 6/21-23/21, at 134, 170-72, 206-61. The

evidence also demonstrated that Appellant lured the victim to his residence

under the guise of friendship. Id. at 201-04, 210-12, 238-41. Appellant then

retrieved his co-conspirator, bringing him to the victim’s exact location, and

stood by while co-defendant took the victim’s wallet, cell phone, and keys at

gunpoint. Id. at 220, 242, 262-63. Afterwards, co-defendant forced the

victim into the trunk and the two men drove the vehicle a short distance away,

before co-defendant executed the victim. Id. at 261-63. The two men then

continued their flight together, attempting to retrieve funds from an ATM with

the victim’s credit card before going their separate ways. Id. at 230-34, 242.

Accordingly, co-defendant’s murder of the victim eliminated the only witness

to the robbery, thereby facilitating their flight and providing the men time to

access the victim’s bank account before the authorities were alerted.

Thus, the record supports the jury’s inference that the victim was shot,

if not during an effort to steal his vehicle, at least to aid in their escape. See

- 10 - J-A19003-22

Commonwealth v. Johnson, 236 A.3d 1141, 1152 (Pa.Super. 2020) (en

banc) (finding evidence sufficient to support robbery and second-degree

murder convictions where Appellant’s cohort perpetrated a killing to aid their

escape); see also Commonwealth v. Kelly, 10 A.2d 431, 433 (Pa. 1940)

(“There is a unity of criminal action between the planning of a crime, its

execution or attempted execution and the flight from the scene.”). Appellant

knew, or should have known, that the possibility of death to the victim

accompanied the dangerous undertaking of an armed robbery. The jury

determined, as was its right, that the killing was in furtherance of the

conspiracy to commit robbery. See also Commonwealth v. Lambert, 795

A.2d 1010, 1023 (Pa.Super. 2002) (“The question of whether the killing was

committed in furtherance of the felony is a question of proof for the jury to

resolve.”).

Appellant counters that Commonwealth v. Waters, 418 A.2d 317 (Pa.

1980), supports his position that the Commonwealth failed to establish a

“causal link” between the robbery and killing. See Appellant’s brief at 21-23.

However, Appellant’s reliance is misplaced. In Waters, a murder was

committed during the perpetration of a burglary where Waters was an

accomplice and not the actual killer. However, unlike herein, in Waters, it

was established that the killer had slayed the victim due to a personal reason

independent of the burglary. Waters revoked his participation in the burglary,

killed the slayer to thwart its continuation, and called 911 to summon

- 11 - J-A19003-22

emergency medical treatment for the victim while he was still alive. Herein,

Appellant never attempted to abandon the robbery. Instead, his actions after

the shooting indicated a continued convergence in purpose between Appellant

and co-defendant.

Furthermore, the question of the sufficiency of the evidence was not

before the Waters Court. Instead, the court considered whether the trial

court erred by denying a request to issue a jury instruction requiring the

Commonwealth to prove “a conspiratorial design by the slayer and others to

commit the underlying felony and of an act by the slayer causing death which

was in furtherance of the felony.” After determining that this deficiency in the

instructions was an error, the Waters Court remanded for a new trial. Id. at

317. However, herein, it is undisputed that the trial court issued the proper

instructions for second-degree murder and detailed the two means by which

Appellant could be held responsible: accomplice liability or co-conspirator

liability. See N.T. Jury Trial, 6/21/21-6/23/21, at 378-92. Thus, the Waters

holding has no bearing on whether the Commonwealth presented evidence of

a causal nexus between the robbery and the killing in this case. Accordingly,

Appellant’s argument is meritless.

Viewed in the light most favorable to the Commonwealth as verdict

winner, we find that the evidence was sufficient to uphold Appellant’s

conviction for second-degree murder.

Judgment of sentence affirmed.

- 12 - J-A19003-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/20/2022

- 13 -