Opinion
430 MDA 2021 J-S18036-22
09-12-2022
COMMONWEALTH OF PENNSYLVANIA v. LESTER BALDWIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 30, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002296-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM
McCAFFERY, J.
Lester Baldwin (Appellant) appeals from the judgment of sentence entered in the Lackawanna County Court of Common Pleas following his jury conviction of criminal conspiracy to commit robbery (taking property from another by force). Appellant challenges the sufficiency of the evidence regarding his conviction, namely that the Commonwealth failed to establish: (a) there was an agreement between Appellant and his co-defendants to rob the victim, George Chermak; and (b) that force was used to support the underlying crime of robbery. Appellant also complains the verdict was against the weight of the evidence. Lastly, Appellant contends the trial court erred in admitting certain hearsay testimony under the "excited utterance" exception. Upon review, we affirm.
Appellant states he takes this appeal from the March 15, 2021, order denying his post-sentence motion. See Appellant's Notice of Appeal, 4/13/21. This appeal, however, properly lies from the judgment of sentence, entered on December 30, 2019, made final by the denial of postsentence motions. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted). We have corrected the caption accordingly.
Chermak died of unrelated causes in January of 2019, which was prior to Appellant's trial. See Trial Ct. Opinion at 27, n.8.
Appellant's conviction stems from an August 25, 2018, incident wherein Chermak was robbed of $400 in cash outside Noone's Market, which is located at 416 West Market Street, Scranton, Pennsylvania. George Noone, the owner of the market, was opening the business when he noticed three customers waiting outside. See Trial Ct. Op. at 2; N.T. Trial, 7/9/19 (A.M.), at 49. He described the three customers, who entered the store, as "younger Hispanic males .... One was bigger. He was heavyset, taller. And the others were a little younger. They were thinner.... The larger one was wearing a black hoodie. Another one was wearing . . . a checkered shirt." Id. at 60. Noone subsequently identified those three customers as Appellant, and his co-defendants, Thomas Santerangelo and Efrain Dones.
We glean the factual and procedural background from our review of the record and the trial court's January 5, 2022, opinion.
See Trial Ct. Op. at 3. Specifically, Appellant wore a black sweatshirt, Dones wore a "shirt with the double zero on the back, and [Santerangelo wore a] sweatshirt, [and wore] his hair in an afro." N.T. Trial, 7/9/19 (P.M.), at 73-74.
Shortly thereafter, Chermak and another customer, Ricky Torres, entered the market. See id .; N.T. Trial, 7/9/19 (P.M.), at 6.
Chermak had been a customer for several years. See N.T. Trial, 7/9/19 (A.M.), at 56. Noone testified, "[Chermak] usually [came to the store] twice a day. He would buy lottery tickets.... He always paid cash [and] . . . [h]e would always keep money in his shirt pocket." Id. at 56-57 (emphasis added). Chermak, Appellant, and his two companions "engaged in friendly banter at the front counter." Trial Ct. Op. at 3. Appellant purchased an item with his credit card and then exited the store with Dones and Santerangelo. See id.
Torres stated that Chermak bought his usual lottery tickets and the two men left the store at the same time. See N.T. Trial, 7/9/19 (P.M.), at 7. They spoke outside the store and Torres noticed:
As I'm having a conversation I see a gentleman[, later identified as Dones,] walking by with a hoodie on and going to the alcohol side. It looked like he was going in, but then he hesitated, and shut the door, and then kind of made his way over to us as we're talking, and basically sat there for, like, maybe a minute. And then when I finished talking to [Chermak], I walked away.Id. at 8. Approximately ten seconds later, Torres then heard Chermak yell, "I've been robbed." Trial Ct. Op. at 4; see also N.T. Trial, 7/9/19 (P.M.), at 28. "Upon hearing [Chermak] yelling, [Torres] turned around, and observed a man in [a] black hoodie running away." Id. Torres also observed Chermak "moving his hands" in a "panting" motion. Id. at 11.
Noone corroborated Torres's testimony. He heard Chermak yelling, "Robbery" from inside the store. See N.T. Trial, 7/9/19 (A.M.), at 64-65. He went outside and observed "[Chermak] getting into his car, [while saying] that the three guys that were just in the store robbed him and he was going to go after them." Id. at 65.
That same day, Officer Chris Kaushas of the Scranton Police Department responded to the report of a robbery and initiated an investigation at Noone's Market. Trial Ct. Op. at 4. He submitted a written report to the Scranton Police Detective Bureau. Id.
Two days later, and after receiving Officer Kaushas's report, Detective Edward McIntyre went to Noone's Market and was provided with the store's indoor surveillance system. See Trial Ct. Op. at 4. He also viewed exterior surveillance footage from an adjacent business. See id. Detective McIntyre summarized the video footage as follows:
The three gentlemen shop about in the store. At one time they're standing at the counter paying for items; the victim at that time enters the store. And you'll see each of the [three gentlemen] acknowledge the victim, speak to him ever so briefly, look down at where he is standing [ . . . ] just prior
to getting into the frame you'll see Mr. Santerangelo look back at him and then nod his head [ . . . ] you'll see the three gentlemen . . . exit the store here, and they stop right around the corner. You'll see Mr. Dones put his bag down on the ground, Mr. Santerangelo immediately pick it up. [Appellant] take off his black sweatshirt and gives it to Mr. Dones. At that time Mr. Santerangelo starts at a rapid pace walking away from the scene here with all the bags. [Appellant] starts this direction, but he's summoned by Mr. Santerangelo to go this way, and they go back through the hole in the fence [ . . . ] you'll see Mr. Dones running from the scene, wearing [Appellant]'s sweatshirt, down Rockwell Avenue in the same direction he came from.See id. at 4-5 (emphases added), citing N.T. Trial, 7/9/2019 (P.M.), at 75, 78, 80-81.
In a "zoomed-in" version, Detective McIntyre similarly remarked:
It would be [Appellant], Santerangelo, and . . . Dones walking around the corner. [Appellant] removing his sweatshirt, Mr. Santerangelo picking up the bags, and Mr. Dones [ . . . ] is now putting on [Appellant]'s sweatshirt. Mr. Santerangelo has two bags in his hands, and [Appellant] has one. They initially start this way, but then realize there's a hole in the fence and go back that way.Trial Ct. Op. at 5; N.T. Trial, 7/9/19 (P.M.) at 83.
On August 30, 2018, Patrolman Anthony Gieda, a Scranton police officer, and other officers were dispatched to the area of Charles and Wells Streets, after receiving a report that there were several males at the location who matched the description of the suspects involved in the robbery at Noone's Market. See N.T. Trial, 7/9/19 (P.M.), at 36. The officer observed one male go into the home, and Appellant sitting on the porch. Id. at 39. He told Appellant that they were investigating a robbery and looking for suspects. Id. at 40. At first, Appellant did not give them any information, including his name. Id. He later admitted that he was at Noone's Market and made a purchase. Id. at 52. Police received permission from the individual who was renting the home to conduct a search. Id. at 41. The officers located the other individual, later identified as Santerangelo, hiding in a crawl space in the cellar. Id. at 45-46. Both men were detained and transported to police headquarters. Id. at 47.
Later that day, Detective McIntyre interviewed Appellant and Santerangelo about the incident. During Santerangelo's interview, he admitted to knowing: (1) that a robbery was going to occur; (2) that Dones was going to rob Chermak by "snatch[ing] the money clip out of his breast pocket[;]" N.T. Trial, 7/9/19 (P.M.), at 85-86. Santerangelo also stated that Baldwin gave his sweatshirt to Dones because he knew Dones was going to rob Chermak. Id. at 86-87.
The interviews were recorded with audio and video. See N.T. Trial, 7/9/19 (P.M.), at 84.
Appellant and his co-defendants, Santerangelo and Dones, were charged and tried together. A three-day jury trial commenced on July 8, 2019. Notably, Noone and Torres both testified as to what they witnessed on the day of the incident. Detective McIntyre identified Appellant, Santerangelo, and Dones as the perpetrators in the footage from the exterior surveillance camera. N.T. Trial, 7/9/19 (P.M.), at 73. Moreover, Detective McIntyre detailed the interview with Santerangelo regarding the conspiracy. See id. at 85-87. Detective McIntyre did not testify to what Appellant said in the interview; however, the video was played at trial for the jury to observe. See id. at 87-88. After the Commonwealth rested, Appellant's counsel made an oral motion for demurrer based on an allegation of insufficient evidence to prove conspiracy to commit robbery. The trial court denied the motion. Appellant did not testify or present any witnesses.
We note the video was not included in the certified record, but Appellant does not raise any challenge with respect to it.
At the conclusion of the trial, the jury found Appellant guilty of criminal conspiracy to commit robbery. On December 30, 2019, the trial court sentenced Appellant to serve a term of 21 to 48 months' incarceration with two years of special probation. See Trial Ct. Op. at 8. Subsequently, on January 9, 2020, Appellant filed post-sentence motions, and the trial court held a hearing on the motions on January 30th. Id. Appellant also filed a "Nunc Pro Tunc Motion for Reconsideration of Sentence - Issue of Time Credit for Time-Served" and a premature, pro se notice of appeal. Id . After receiving information from the Lackawanna Clerk of Courts, the trial court issued a corrective order clarifying and granting Appellant the applicable credit on September 16, 2020. Moreover, due to Appellant's improper pro se notice of appeal, which divested the trial court of jurisdiction regarding his counseled post-trial motions, the court appointed new counsel on September 17th "to resolve the procedural confusion." Id. Appointed counsel filed a praecipe to discontinue their client's pro se filings, which this Court granted on November 10, 2020. Id. Thereafter, Appellant's postsentence motions were deemed denied by operation of law on March 15, 2021. This timely appeal followed.
Appellant raised the following issues in his post-sentence motions: (1) the verdict was against the weight of the evidence, (2) improper identification, (3) warrantless arrest, and (4) the evidence was insufficient to support Appellant's conviction.
Specifically, the court granted Appellant two days of credit for time served, citing that Appellant posted bail on August 31, 2018. Trial Ct. Op. at 8, n.5.
The trial court ordered Appellant to file a Rule 1925(b) concise statement on May 11, 2021. On June 1, 2021, Appellant filed a motion for extension of time to file the concise statement. The court granted the motion on the same day. Appellant complied and filed his concise statement on June 22, 2021. The trial court issued a Rule 1925(a) opinion on January 5, 2022.
Appellant raises the following issues on appeal:
1. Whether the evidence was insufficient as a matter of law to sustain a conviction on the charge of [c]onspiracy to [c]ommit [r]obbery where the evidence failed to establish (a) an agreement between or among Appellant and any codefendants and (b) the element of force necessary for Appellant's co-defendant to commit a robbery?
2. If the evidence is deemed sufficient, in the alternative, whether the jury's verdict was rendered against the weight of the evidence and allowing the verdict to stand would shock the conscience of justice as to Appellant's conviction of the charge of conspiracy to commit robbery?
3. Whether [the trial court] improperly admitted hearsay testimony regarding statements of the alleged victim and witnesses used [to] incriminate Appellant at the time of trial without a valid hearsay exception?Appellant's Brief at 4.
It merits mention that Appellant raised the following additional issues in his concise statement:
1. Whether Appellant was properly identified as a suspect [since] the identification of Appellant was prejudiced by the identifying officers' familiarity with Appellant and the police reports materially misrepresented, or otherwise altered or fabricated facts to substantiate the identification of Appellant and corroborate other officers' reports?
2. Whether [the trial court] imposed sentence beyond 90 days from the date of conviction without adequate support in the record in violation of Pa.R.Crim.P. 704 such that Appellant's sentence should be charged?
3. Whether the sentence imposed was harsh and excessive in light of all factual circumstances involved in the case?Appellant's Statement of Errors Complained of on Appeal, 6/22/22 at 1-2. However, a review of Appellant's brief reveals that he has abandoned these claims as he presents no argument regarding the matters. Accordingly, he has waived these claims for appellate review, and we need not address them further. See Commonwealth v. Wilson, 147 A.3d 7, 22 (Pa. Super. 2016) ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.") (citation omitted).
I. Sufficiency of the Evidence
Appellant's first issue challenges the sufficiency of the evidence with respect to his conviction. It is well settled that:
[a] claim challenging the sufficiency of the evidence is a question of law. 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. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations omitted).
With respect to the criminal conspiracy conviction, Appellant argues: "The evidence presented at trial did not establish direct proof [of] an agreement between Appellant and the co-defendants to commit a robbery. Moreover, the circumstantial evidence derived from the video surveillance footage and testimony of witnesses could not have established to the jury that a conspiracy existed." Appellant's Brief at 19. He maintains the Commonwealth's only evidence that Appellant agreed with Dones and Santerangelo to rob Chermak was that he was present when Dones "allegedly" committed the crime. See id. at 22. Appellant contends that mere presence or mere association are not sufficient. Id. at 18-19. To support his argument, he points to the following. First, Appellant asserts that there is no evidence that he and his co-defendants were familiar "with Chermak's schedule to anticipate his arrival." Id. at 20. Second, he notes they were already inside Noone's Market and paying for their purchases when Chermak arrived, and that Torres testified that the interaction between Chermak and the co-defendants was friendly. Id. Third, Appellant claims he did not participate in Dones's and Santerangelo's exchange of looks and gestures in acknowledgement of Chermak. Id. at 20-21. Lastly, Appellant alleges that Detective McIntyre "repeatedly badger[ed]" Santerangelo in the interview. Id. at 22. Appellant states:
As to Appellant's knowledge of any intent or agreement to rob Chermak, Santerangelo answered that Appellant "could have" known under the circumstances, which is distinct from Appellant in fact knowing of anyone else's plan. A third person's supposition of one person's awareness of another person's plans is not enough to convict [him] of conspiracy.Id. (record citation and quotation marks omitted).
Appellant further claims:
There is absolutely no evidence in the record to demonstrate that Appellant gave the sweatshirt he was wearing to Dones with the intent of facilitating or aiding in the commission of a robbery of Chermak.... Appellant notes that Dones was walking in another direction and a longer distance and asked for the sweatshirt due to the cooler temperature that morning.
Appellant's Brief at 21. Appellant also insists that he never "fled" the scene, rather he "walked away from the store, following more slowly behind his friend." Id. at 21-22 (emphasis omitted).
Criminal conspiracy is defined, in relevant part, as follows:
(a) Definition of conspiracy - 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 are one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime ....18 Pa.C.S. § 903(a)(1). This Court has summarized the following factors to be analyzed in determining the sufficiency of the evidence supporting the existence of a conspiracy:
Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.Commonwealth v. Ruiz, 819 A.2d 92, 97 (Pa. Super. 2003) quoting Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). Additionally,
[m]ere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient to establish that a defendant was part of a conspiratorial agreement to commit the crime. There needs to be some additional proof that the defendant intended to commit the crime along with his coconspirators. Direct evidence of the defendant's criminal intent or the conspiratorial agreement, however, is rarely available. Consequently, the defendant's intent as well as the agreement is almost always proven through circumstantial evidence, such as by the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators. Once the trier of fact finds that there was an agreement and 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. Dunkins, 229 A.3d 622, 633 (Pa. Super. 2020) (citation omitted and emphases added).
In finding there was sufficient evidence to prove that Appellant and his co-defendants conspired to rob Chermak, the trial court explained its reasoning as follows:
[Appellant] and his co-defendants clearly conspired to perpetrate the robbery of an elderly patron of Noone's Market, namely [Chermak]. . . . All three . . . arrived at Noone's Market together. Video surveillance and eyewitness testimony revealed that all three . . . entered the store and observed the elderly victim George Chermak, each drawing attention to his billfold and the cash inside. All three . . . exited the store, whereupon [Appellant] removed his black hooded sweatshirt, and provided the sweatshirt to his co-defendant, who then utilized the hoodie to camouflage and conceal his identity before he robbed [Chermak]. After perpet[r]ating the robbery all three . . . fled the scene. Moreover, the Commonwealth published evidence of co-defendant . . . Santerangelo's recorded interview, which corroborated that all three defendants knew each other, arrived together, all three saw [Chermak]'s money clip, all three defendants agreed to rob [Chermak], and that [Appellant] knew co-defendant Dones would rob [Chermak] so he provided him with his black hoodie to conceal . . . Dones's identity.Trial Ct. Op. at 11-12 (citations omitted). The trial court emphasized that Appellant's "involvement in the robbery went beyond mere presence." Id. at 12 (quotation marks omitted). The court also determined his actions and behavior, as established by the surveillance footage and eyewitness testimony, "was sufficient to show a shared intent and implicit agreement to commit a robbery, as well as multiple over acts perpetrated in furtherance of that conspiracy." Id. We agree with the trial court's determination that there was sufficient evidence to support Appellant's conspiracy conviction.
A review of the record, particularly Detective McIntyre's summary of the video surveillance and Santerangelo's confession, supports this conclusion. Detective McIntyre narrated an interaction between Santerangelo and Dones as follows: "You could see Mr. Santerangelo's eyes looking down at [Chermak].... Just prior to getting into the frame you'll see Mr. Santerangelo look back at [Chermak] and then nod his head.... Mr. Santerangelo is looking at Mr. Dones looking at his eyes, or looking at him." N.T. Trial, 7/9/19 (P.M.) at 78.
In the footage showing the exterior of Noone's Market, Appellant, Dones, and Santerangelo were seen exiting the store and "they stop[ped] right around the corner." N.T. Trial, 7/9/19 (P.M.), at 78. Detective McIntyre recounted:
You'll see Mr. Dones put his bag down on the ground, Mr. Santerangelo immediately pick it up. [Appellant] takes off his black sweatshirt and gives it to Mr. Dones. At that time Mr. Santerangelo starts at a rapid pace walking away from the scene here with all the bags. [Appellant] starts this direction, but he's summoned by Mr. Santerangelo to go this way, and they go back through the hole in the fence. Mr. Dones disappears around the corner by [Chermak's] vehicle right there.... You'll see Mr. Dones running from the scene, wearing [Appellant's] sweatshirt, down Rockwell Avenue in the same direction he came from.Id. at 80-81 (emphasis added).
Prior to the men running from the scene, Torres testified that he had a conversation with Chermak outside the market, when one of the men, later determined to be Dones, came up to them and "just stood there for . . . a brief minute as [they] were finishing." N.T. Trial, 7/9/19 (P.M.), at 18. Torres stated that he turned away and seconds later, he heard Chermak yelling about being robbed. Id. at 19, 28. Torres then saw someone in black outerwear fleeing the scene. Id. at 19.
Furthermore, Santerangelo's confession was admitted into evidence and played to the jury. N.T. Trial, 7/9/19 (P.M.), at 85. In it, the following line of questioning took place on direct:
Q. Does Thomas Santerangelo admit to knowing that a robbery was going to occur?
A. Yes.
Q. Does he admit to knowing a robbery is going to occur and saying, "I'll take the bags[?"]
A. Yes.
Q. Does he admit that he knew Efrain Dones was going to rob George Chermak?
A. Yes.
Q. Does he say he's going to snatch the money clip out of his breast pocket?
A. Yes. * * *
Q. Does Thomas Santerangelo admit that when [Appellant] gave up his sweatshirt he knew Efrain Dones was going to rob George Chermak?
A. Yes.Id. at 85-87.
On cross-examination, Detective McIntyre reiterates that Santerangelo and the other two men saw the money clip in Chermak's shirt pocket, and "[t]here was an agreement, they went outside, and [Santerangelo] agreed to take the bags, but not do the robbery." N.T. Trial, 7/10/2019, at 34; see also id. at 39-40 (the detective testified "all three Defendants saw George Chermak's money clip [and] . . . agreed to rob [him.] [A]ll three Defendants knew each other [and] . . . arrived together[.] . . . [Appellant] knew that Efrain Dones was going to rob George Chermak when he gave him the sweatshirt[.]").
The totality of the circumstances, and all reasonable inferences drawn from the evidence, demonstrate that Appellant and his co-defendants devised a scheme to commit the robbery. Their conduct included: (1) Dones and Santerangelo were exchanging glances in the store after observing Chermak's cash; (2) all three men went outside, and Appellant gave his black sweatshirt to Dones while Santerangelo took his shopping bag; (3) Dones stood around Chermak and Torres and when Torres turned his back and walked away, Chermak shortly thereafter yells that he has been robbed; (4) Torres turned around and observed a man, wearing a black sweatshirt, running in the opposite direction; and (5) Appellant and Santerangelo immediately left the area while Dones was observed, on video surveillance, disappearing around the corner by Chermak's vehicle while running from the scene. Additionally, Santerangelo, in his confession, told police of Appellant's prior knowledge and participation in the criminal act. See N.T. Trial, 7/9/19 (P.M.), at 85-87.
Although Appellant may have not been the actual perpetrator, this Court previously determined that "[c]onspirators need not contemplate the ultimate crime in order to be charged and convicted of conspiracy to commit that crime." Commonwealth v. Carr, 227 A.3d 11, 17 (Pa. Super. 2020). Additionally, "[t]he essence of a criminal conspiracy . . . is the agreement made between the co-conspirators." Dunkins, 229 A.3d at 633. Accordingly, the evidence, both direct and circumstantial, establish that Appellant knowingly entered into the agreement with Dones and Santerangelo to rob the victim; therefore, he is liable for their overt acts committed in furtherance of the conspiracy. See id. (holding there was sufficient evidence to support conspiracy conviction where defendant and another individual devised a plan to rob a college student of money).
Moreover, contrary to Appellant's argument, his conduct does not amount to mere presence. Rather, he took an active role in the robbery by giving his sweatshirt to Dones. Since Dones was wearing a distinctive shirt, Appellant's black sweatshirt helped disguise him. Thus, we agree with the trial court's assessment that there was sufficient evidence to support the conspiracy conviction.
Next, Appellant argues that the evidence is insufficient "to establish the underlying charge of robbery that Appellant was convicted of aiding or agreeing to facilitate." Appellant's Brief at 23. Appellant contends that
there needs to be force exerted to remove the object from the person of another; even though the force required is slight, it is nonetheless a required element of robbery as charged here. However, the evidence does not support a finding of a robbery. There were no eyewitnesses to the purported removal of Chermak's billfold from his pocket. Chermak did not testify, as he passed away prior to trial. Neither Noone nor Torres saw the removal of Chermak's billfold, but instead heard Chermak's exclamations of "robbery."Id. at 24. Appellant asserts that the Commonwealth's only evidence of force is Chermak's exclamatory statement. See id. at 25.
To sustain a conviction of robbery (taking property from another by force), the statute provides in relevant part:
(1) A person is guilty of robbery if, in the course of committing a theft, he: * * *
(v) physically takes or removes property from the person of another by force however slight . . .18 Pa.C.S. § 3701(a)(1)(v). In other words, "[t]he elements of [Subsection] 3701(a)(1)(v) are: (1) taking or removing property by force (however slight); (2) from another person; (3) with the intent to deprive that person of the property." Commonwealth v. Spenny, 128 A.3d 234, 251 (Pa. Super. 2015). This Court has determined that "[a]ny amount of force applied to a person while committing a theft brings that act within the scope of the robbery statute.... [Additionally,] the degree of force is immaterial, so long as it is sufficient to separate the victim from his property in, on or about his body." Commonwealth v. Bedell, 954 A.2d 1209, 1213 (Pa. Super. 2008) (quotation marks and citations omitted).
Here, in finding there was sufficient evidence to support the underlying crime, the trial court explained:
Appellant's co-defendant, Dones literally grabbed the billfold/money clip from [Chermak's] breast pocket and fled the scene. To obtain the billfold/money clip of cash that [Chermak] held on his person, co-defendant Dones utilized force to separate him from his property. At the moment of the robbery, [Chermak] screamed. Eyewitness testimony in conjunction with the 911 recording indicate that [Chermak] exclaimed "Robbery [. . .] I've been robbed." [Chermak] verbalized that he was just robbed by the customers previously inside the store and he intended to chase after them. . . . Clearly, [Chermak] held knowledge and awareness of the removal of his billfold, including the force required to do so.... By comparison, [Chermak] was not the victim of a pickpocket, rather the Commonwealth's evidence is more akin to a purse snatching wherein the victim is aware of the separation as well as the force that compelled that separation.Trial Ct. Op. at 13-14 (citations omitted).
We agree with the trial court that there was sufficient evidence to sustain the robbery conviction. We note that much of Appellant's argument as to the robbery charge concerned the fact that no one other than Chermak and Dones saw the physical taking of Chermak's money. We reiterate that the Commonwealth just needed to prove that the perpetrator separated the victim from the property that was on his person. See Bedell, supra. Here, Chermak's cash was in his shirt pocket. See N.T., 7/9/19 (A.M), at 57. Santerangelo confessed, via Detective McIntyre's testimony and without objection, that the plan was Dones would rob Chermak by "snatch[ing] the money clip out of [the victim's] breast pocket[.]" N.T. Trial, 7/9/19 (P.M.), at 86 (emphasis added). After Dones was observed standing by Chermak, the victim exclaimed that he had robbed, which both Torres and Noone heard. See N.T., 7/9/19 (A.M), at 64; N.T. Trial, 7/9/19 (P.M.), at 19. The circumstances demonstrated that Chermak was aware that Dones removed the money, as the money was in his breast pocket, and he immediately yelled out after it had been removed. See Bedell, 954 A.2d at 1213. As such, we agree with the trial court that the Commonwealth presented sufficient evidence to support the underlying crime of robbery.
II. Weight of the Evidence
In his second claim, Appellant "argues that the verdict is contrary to the weight of the evidence such that the verdict shocks one's sense of justice." Appellant's Brief at 26.
Appellant properly preserved this claim in a post-sentence motion. See Appellant's Post-Sentence Motion, 1/9/20.
This Court's standard of review of a weight of the evidence claim is well-settled:
A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice. On review, an appellate court does not substitute its judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, determines only whether the trial court abused its discretion in making its determination.Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations omitted). Further, the fact finder is free to believe all, some, or none of the evidence presented. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citation omitted).
This Court will not find an abuse of discretion
Based on a mere error of judgment, but rather . . . where the [trial] court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Importantly, [this C]ourt should not find that a trial court abused its discretion merely because [we] disagree[] with the trial court's conclusion. Indeed, "when reviewing the trial court's exercise of discretion, it is improper for [this C]ourt to 'step[] into the shoes' of the trial judge and review the evidence de novo." In other words, [this C]ourt "may not disturb a trial court's discretionary ruling by substituting its own judgment for that of the trial court."Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019) (citations and some quotation marks omitted). Appellant contends that the evidence presented at trial, specifically
"(1) Appellant was at the store a[t] the same time as Dones, Santerangelo[,] and [Chermak]; (2) Appellant knows or was associated with Dones, the individual who committed the crime; (3) Appellant gave Dones a sweatshirt; and (4) Appellant's other associate surmises that Appellant knew Dones's [sic] intent[,] . . . when viewed in context, are so weak that Appellant has been denied justice." Appellant's Brief at 29. In support of his argument, Appellant asserts:
First, Appellant arrived before Chermak. There can be no argument that Appellant went to Noone's Market with the intent of committing a crime or conspiring to commit a crime because there is no evidence to support such an inference. Second, Appellant made a purchase using a card - he made no attempt to conceal his identity and was present in the store for a legitimate purpose as a customer. The fact that Appellant used an identifying method of payment weighs heavily in favor that he did not feel the need to attempt to conceal his identity. This reasonably leads to the conclusion that Appellant had no designs or intentions to commit a crime or to conspire or assist in the commission of a crime. Third, contrary to the picture painted by the Commonwealth, Appellant did not flee the scene; Appellant walked away from the store a normal - if not slow - pace. Appellant also exited through an egress where a gate was missing from the fence, not a "hole" in the fence. Finally, when confronted by the police, Appellant acknowledged that he was a customer of Noone's Market on August 25, 2018 and used his credit/debit card to make a purchase. He was not "deceptive" as originally characterized by the testimony of [one of the investigating officers].Id. at 28.
In denying Appellant's weight claim, the trial court maintains that the jury found the evidence to be "credible and reliable enough to return a verdict of guilty on the charged offense." Trial Ct. Op. at 20. The trial court relied on Detective McIntyre's testimony, in which he narrated the surveillance footage collected from that day. See id. at 17-18. Specifically, the court pointed to the fact that "Santerangelo drew the attention of [Appellant] and . . . Dones towards, . . . Chermak" and that Appellant gave Dones his sweatshirt, carried his shopping bag, and left the premises with Santerangelo right before Dones robbed Chermak. Id. at 17-18. The court also noted in Santerangelo's interview, where he admitted to conspiring with Appellant and Dones to commit robbery and said that "Appellant provided co-defendant Dones with his black hoodie knowing that Dones was going to rob [Chermak]," further supported its conclusion. See id. at 18-19. Moreover, the court stated that eyewitness testimony and the 911 call, "corroborated the presence of all three males, including . . . Appellant, inside Noone's Market on August 25, 2018." Id.
Lastly, the court opined:
Eyewitness testimony revealed that upon exiting Noone's Market, [Chermak] yelled "Robbery," and he exclaimed that the three men previously inside the store robbed him and he intended to chase after them. Eyewitness testimony also indicated that a man in a black hoodie was observed near [Chermak] and subsequently observed running from the scene. . ..
Nevertheless, . . . Appellant baldly challenges the weight of the evidence by arguing that allowing the verdict to stand would "shock the conscience of justice." A review of the above cited testimony and evidence shows otherwise. The jury was free to weigh the testimony, video surveillance, 911 call, and recorded interview as well as accept or reject the rationale provided by the Commonwealth for why . . . Appellant was present at Noone's Market, and for why he provided his sweatshirt to Efrain Dones prior to the robbery or for why . . . Appellant fled the scene. Simply put, the verdict is not so contrary to the evidence as to shock the conscience.Id. at 19-20.
We agree with the trial court's determination that verdict was not against the weight of the evidence. Appellant's argument amounts to a request to reweigh the evidence in his favor - a request that is beyond our standard of review. We point out that the jury, sitting as the finder of fact, was entitled to believe all part or some of the evidence presented at trial. See Champney, 832 A.2d at 408. Here, the jury found Appellant guilty of conspiracy to commit robbery based on the substantial evidence presented at trial. See Trial Ct. Op. at 20. The jury heard from the witnesses, viewed the footage, and listened to the parties' arguments. As we cannot substitute the jury's determinations for our own with respect to Appellant's excuses as to why he gave Dones his sweatshirt and carried his shopping bag while leaving the premises, we detect no abuse of discretion, and therefore we conclude no relief is due. See Champney, 832 A.2d at 408; Lyons, 79 A.3d at 1067. Accordingly, Appellant's weight of the evidence claim fails.
III. Admission of Hearsay Testimony
In his final argument, Appellant claims the trial court abused its discretion by admitting a statement made by Chermak at the time of the incident. See Appellant's Brief at 29-32. By way of background, at trial, Noone and Torres both testified that Chermak yelled, "Robbery," when Dones took Chermak's money from his breast pocket. See Trial Ct. Op. at 3. Noone testified that Chermak told him that "the three guys that were just in the store robbed him and he was going to go after them." N.T. Trial 7/9/19 (A.M.) at 65. Appellant's counsel objected but the trial court deemed Noone's recitation of Chermak's statement to be admissible because it constituted an "excited utterance." Id. at 66. Appellant now argues:
The trial court erred or otherwise abused its discretion in admitting hearsay testimony to incriminate Appellant because there was no valid hearsay exception applied to permit testimony regarding the statements of George Chermak. The application of an excited utterance exception in this case does escape the restrictions of the Confrontation Clause of the Sixth Amendment to the United States Constitution and no other hearsay exception renders the statements admissible.
Particularly, Appellant takes issue with the testimony of George Noone and Ricky Torres regarding George Chermak's communications that the individuals in the store "robbed" him.Appellant's Brief at 29-30 (citation omitted).
We note:
In pertinent part, the Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI. The right to confrontation "applies to witnesses against the accused - in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (internal quotations, citation, and brackets omitted).Commonwealth v. Brown, 185 A.3d 316, 319 n.3 (Pa. 2018).
To the extent Appellant raises a Confrontation Clause argument, we must first determine whether he has properly preserved the claim. A review of the record reveals Appellant failed to raise this constitutional challenge in his court-ordered concise statement, as required by Pa.R.A.P. 1925(b). As a result, the issue is waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) ("[I]n order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a [s]tatement of [m]atters [c]omplained of on [a]ppeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.").
As to question of whether the court improperly admitted this evidence, we note that "[h]earsay is an out-of-court statement offered to prove the truth of the matter asserted by the declarant." Commonwealth v. King, 959 A.2d 405, 412 (Pa. Super. 2008). Hearsay is generally inadmissible at trial unless it falls within an exception of the hearsay rule. Commonwealth v. McEnany, 732 A.2d 1263, 1272 (Pa. Super. 1999); see also Pa.R.E. 802 ("Hearsay is not admissible except as provided by these rules [of evidence], by other rules prescribed by the Pennsylvania Supreme Court, or by statute."). One of the exceptions to the hearsay rule is the "excited utterance," which is defined as:
[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.Commonwealth v. Pronkoskie, 383 A.2d 858, 860 (Pa. Super. 1978) (citation omitted). In determining whether a statement is an "excited utterance," we must consider the following factors:
1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the excited utterance exception. "It is important to note that none of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance."Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (citations omitted; emphasis in original).
In finding the evidence in the present matter constituted an "excited utterance," the trial court opined:
[T]he evidence of record reveals that George Chermak witnessed a startling event, namely, a robbery, and made spontaneous statements to eyewitnesses pertaining to the robbery. Store owner, George Noone testified to [Chermak's] statement that "the three guys that were just in the store robbed him and he was going to go after them [. . .] pointing to [eyewitness] Ricky Torres exclaiming that 'he saw them,'" was uttered contemporaneously with the occurrence of the event described by [Chermak]. Thus, the statement had an inherent reliability and indeed fell within the exception to the rule against hearsay. The record illustrates that [Chermak] made the statements while dominated by nervous excitement, not his reflective faculties. [Chermak] reported what he observed and had no reason to fabricate the fact that . . . Appellant and his co-defendants were involved in the robbery. [Noone] testified that, while making the statements, [Chermak] yelled loudly and could be heard through
the window. Eyewitness, Ricky Torres testified that, [Chermak] yelled a couple of times, "panting" and "shocked that it happened." Also, the record indicates that [Chermak] made the statements near in both time and place to the robbery. Specifically, [Noone] testified that [Chermak] made the statements while standing outside Noone's Market and while . . . Appellant's co-defendant, Efrain Dones robbed [Chermak]. Thus, very little time lapsed between the robbery and the statements made to George Noone and Ricky Torres. Ultimately, [Chermak] made his statements in response to a startling event: he had just been robbed. He made the statements spontaneously, as part of an unprompted declaration, while in a visible state of shock and experiencing overpowering emotion.Trial Ct. Op. at 27-28.
Applying the factors set forth in Keys, we agree with the trial court's decision that Chermak's statements constitute excited utterance. First, Chermak made the statements which were a spontaneous reaction to witnessing a startling event, namely when Dones grabbed the money from his breast pocket. See Keys, 814 A.2d at 1258. Second, his statements were made in close point of time to the startling event "as to render [his] reflective thought processes inoperable." Pronkoskie, 383 A.2d at 860; see Keys, 814 A.2d at 1258. Finally, the statements were not a narrative; rather, they were a reaction to a single startling event. See Keys, 814 A.2d at 1258, 1259. Thus, we conclude that Chermak's statements constituted an excited utterance and were properly admitted as an exception to the hearsay rule. Accordingly, no relief is due as to Appellant's final claim because he failed to preserve the Confrontation Clause argument, and his evidentiary challenge is unavailing.
Judgment of sentence affirmed.
Judgment Entered.