Opinion
J-S15024-18 No. 250 EDA 2017
07-26-2018
COMMONWEALTH OF PENNSYLVANIA v. JASON WEBB, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001148-2016 BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.:
Appellant, Jason Webb, appeals from the Judgment of Sentence entered by the Philadelphia County Court of Common Pleas following his convictions after a jury trial of Robbery, Criminal Conspiracy to commit Robbery, and Possession of an Instrument of Crime ("PIC"). We affirm on the basis of the trial court's October 5, 2017 Opinion.
18 Pa.C.S. § 3701(a)(1)(ii); 18 Pa.C.S. § 903; and 18 Pa.C.S. § 907(a), respectively.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying facts. See Trial Court Opinion, filed 10/5/17, at 1-3. Briefly, on October 7, 2015, Appellant used a BB gun to rob Star Mini Market in Philadelphia with three accomplices, including Kareem Hampton. During the robbery, Appellant threatened the employee at the cash register with the BB gun. After Hampton took cigarettes and approximately $700 from the register, Appellant and his accomplices fled on foot. Surveillance cameras inside the store captured the entire robbery.
After the Philadelphia Police Department posted video of the robbery and sought help from the public, a Philadelphia police officer recognized Hampton. Appellant's ex-wife also viewed the video and recognized both Appellant and Hampton. Police recovered a pair of pants matching the pants Appellant was wearing during the robbery. After police arrested Hampton, Hampton confessed to his part in the robbery and identified Appellant as an accomplice.
The Commonwealth arrested Appellant and charged him with, inter alia, the above offenses. Appellant retained Angelo Cameron, Esq. to represent him. In September 2016, during a pre-trial conference held four days before the start of his jury trial, Appellant sought to be represented by Nino Tinari, Esq. Mr. Tinari appeared, asked the court to permit him to enter his appearance, and requested a continuance.
After expressing concern about the belated change of counsel that would require a continuance, the trial court spoke with Mr. Tinari, Mr. Cameron, and Appellant. Appellant clarified that his family hired Mr. Tinari after a fee dispute with Mr. Cameron. After reporting that Appellant had fired him the previous week, Mr. Cameron later assured both Appellant and the trial court that he could set up a payment plan with Appellant and his family to resolve the dispute.
Appellant repeated his preference for Mr. Tinari, and Mr. Tinari stated that he might be able to prepare for the upcoming trial date if he reached an agreement with Appellant and his family. Appellant and his family did not reach such an agreement, and Mr. Tinari abandoned his attempt to enter his appearance in this case. Appellant proceeded to trial with his Mr. Cameron. However, at the end of jury selection on the first day of trial, Appellant again raised similar concerns about trial counsel and financial issues.
On September 16, 2016, a jury convicted Appellant of Robbery, Criminal Conspiracy to commit Robbery, and PIC. On December 22, 2016, the trial court sentenced Appellant to an aggregate term of 8½ to 17 years' incarceration, followed by 5 years' probation.
On December 27, 2016, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
[1.] Was the evidence [] insufficient to sustain guilty verdicts for [R]obbery, [C]onspiracy to commit [R]obbery and [PIC]?Appellant's Brief at 7.
[2.] Did the trial court err in denying [A]ppellant's choice of counsel?
Sufficiency of the Evidence: Identity
Appellant first challenges the sufficiency of the evidence supporting each of his convictions. Appellant's Brief at 11-17. Specifically, he challenges only the element of identity because the robbery victim never identified Appellant as one of the robbers. Id. at 15. Appellant also claims "there was absolutely no scientific evidence tying [A]ppellant to the crime; no DNA, no prints, etc., nothing whatsoever that corroborated the biased, self-serving and unreliable testimony of Hampton and [his ex-wife]." Id. at 16.
Appellant avers that his ex-wife's "testimony was biased and vindictive toward [A]ppellant, and the testimony of Hampton was the result of a self-serving deal with the district attorney's office." Appellant's Brief at 11. Insofar as Appellant focuses his argument on the contradictory testimony by these witnesses, his argument goes to the weight of the evidence and ignores our standard of review applicable to sufficiency challenges. We must view all of the evidence in the light most favorable to the Commonwealth as verdict winner and we may not reweigh the evidence and substitute our judgment for that of the fact-finder. See Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014).
"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 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 citations 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.
The jury convicted Appellant of Robbery, Criminal Conspiracy to commit Robbery, and PIC. 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).
To sustain the conviction for Criminal Conspiracy, there must be proof beyond a reasonable doubt 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. This overt act need not be committed by the defendant; it need only be committed by a co-conspirator." Commonwealth v. McCall , 911 A.2d 992, 996 (Pa. Super. 2006) (citation and quotation omitted). See also 18 Pa.C.S. § 903 (defining Criminal Conspiracy).
To sustain a conviction for PIC, the Commonwealth must prove that the defendant (1) possessed an instrument of crime, (2) with intent to employ it criminally. See 18 Pa.C.S. § 907(a). Under the statute, an "instrument of crime" is defined, in pertinent part, as "[a]nything specially made or specially adapted for criminal use." 18 Pa.C.S. § 907(d).
"In addition to proving the statutory elements of the crimes charged beyond a reasonable doubt, the Commonwealth must also establish the identity of the defendant as the perpetrator of the crimes." Commonwealth v. Brooks , 7 A.3d 852, 857 (Pa. Super. 2010). "Evidence of identification need not be positive and certain to sustain a conviction." Commonwealth v. Orr , 38 A.3d 868, 874 (Pa. Super. 2011) (en banc) (citation omitted).
Our Supreme Court has stated that "any indefiniteness and uncertainty in the identification testimony goes to its weight. Direct evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence." Commonwealth v. Hickman , 309 A.2d 564, 566 (Pa. 1973) (citations omitted).
Our review of the record, in the light most favorable to the Commonwealth as the verdict winner, indicates that the evidence was sufficient to support every element of the offenses beyond a reasonable doubt. The Honorable Glynnis D. Hill, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's sufficiency claim. We affirm on the basis of the trial court's October 5, 2017 Opinion. See Trial Court Opinion, 10/5/17, at 4-6 (concluding that there is no merit to Appellant's sufficiency claim because, inter alia, (1) Appellant's ex-wife identified him as one of the robbers; (2) Hampton identified Appellant as one of the robbers; and (3) Appellant's clothing matched the clothing he was wearing in the surveillance video).
Choice of Counsel
In his Brief, Appellant contends that "the trial court erred in denying [his] choice of trial counsel." Appellant's Brief at 17. Appellant avers that he did not want to be represented by Mr. Cameron, whom Appellant had previously asked to withdraw, and that Mr. Tinari, his preferred attorney, could have been ready for trial. Id. at 17-18. As noted above, Mr. Cameron had represented Appellant since December 2015, and Appellant made his request for a new attorney, based only on a fee dispute, only four days before the commencement of the scheduled trial.
A defendant's right to counsel, which is guaranteed by both the Sixth Amendment to the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution, guarantees the accused the right "to choose at his own cost and expense any lawyer he may desire." Commonwealth v. Radecki , 180 A.3d 441, 472 (Pa. Super. 2018) (citations and quotations omitted). These rights are not absolute, and a trial court must balance them against the state's reasonable restrictions imposed to secure "the swift and efficient administration of criminal justice." Id. at 473 (citations and quotation marks omitted). Defendants may not "unreasonably clog the machinery of justice or hamper and delay the state's efforts to effectively administer justice." Id. (citations and quotation marks omitted). See generally Commonwealth v. Baines , 389 A.2d 68, 70 (Pa. 1978).
Pennsylvania Rule of Criminal Procedure 120 provides, in part, that "Counsel for a defendant may not withdraw his or her appearance except by leave of court." Pa.R.Crim.P. 120(B)(1). The comments to Rule 120 clarify that "[t]he court must make a determination of the status of a case before permitting counsel to withdraw." Comment to Pa.R.Crim.P. 120. In deciding whether to permit counsel to withdraw, the court must consider whether (1) "new counsel will be stepping in or the defendant is proceeding without counsel," (2) the change of counsel will "delay the proceedings or prejudice the defendant," and (3) "the defendant has failed to meet his or her financial obligations to pay for the attorney's services[.]" Id. See Commonwealth v. Magee , 177 A.3d 315, 323 (Pa. Super. 2017) (describing balancing factors). We review the court's decision for an abuse of discretion. Id. at 322.
The trial court addressed Appellant's claim as follows:
At the trial readiness conference 4 days before the September 12, 2016 trial, the Appellant said he had a disagreement with his attorney (Angelo Cameron) and requested new counsel (Nino Tinari). The Court was concerned about unnecessarily delaying the trial and asked the Appellant why he wanted new counsel. The Appellant was concerned about attorney Cameron's fee. However, attorney Cameron told the court that he would resolve the fee dispute by working with the Appellant's family to create a payment plan. With this difference resolved, the Appellant agreed to let attorney Cameron represent him. As the court did not deny the Appellant his choice of counsel, this claim should be dismissed.Trial Court Opinion at 3-4. See also N.T., 9/8/16, at 22-24 (where Appellant agrees to continue with Mr. Cameron).
Our review of the record indicates that the source of conflict here was a fee dispute between Mr. Cameron and Appellant's family and not an issue with the quality of legal representation that Mr. Cameron had provided. Due to this financial dispute, Appellant's family attempted to hire Mr. Tinari. The record shows that, because he immediately requested a continuance when he attempted to enter his appearance, Mr. Tinari was not prepared for Appellant's upcoming trial. N.T., 9/8/16, at 3. Moreover, the trial court conducted a full colloquy regarding this issue to explain its concerns and clarify that, although Mr. Cameron was ready to proceed to trial in four days as scheduled, Appellant could be represented by Mr. Tinari if Appellant's family could reach a financial agreement with Mr. Tinari so he would be able to expedite his preparations and proceed to trial in four days.
Even though Mr. Tinari suggested that he could have prepared for the upcoming trial if he reached an agreement with Appellant and his family, they never reached an agreement. Thus, Mr. Tinari abandoned his efforts to enter his appearance for Appellant's upcoming trial. See N.T. 9/9/16, at 3-6 (where the court discusses Mr. Tinari's decision not to enter his appearance).
Given that Appellant agreed to continue with Mr. Cameron after Mr. Cameron provided a new payment plan to the family, we conclude that Appellant was not denied his choice of counsel. Moreover, in encouraging a resolution of the fee dispute between Appellant and Mr. Cameron, the trial court struck a reasonable balance to secure "the swift and efficient administration of criminal justice." Radecki , 180 A.3d at 473. Accordingly, Appellant's second issue warrants no relief.
In light of the foregoing, we affirm the Judgment of Sentence. The parties are instructed to attach a copy of the trial court's October 5, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/26/18
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