J-S64025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MALCOLM JAMAR FULLER

                            Appellant                No. 745 MDA 2015


        Appeal from the Judgment of Sentence of November 13, 2012
               In the Court of Common Pleas of Berks County
             Criminal Division at No.: CP-06-CR-0000011-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 12, 2015

       Malcolm Fuller appeals, nunc pro tunc, the November 13, 2012

judgment of sentence, which was imposed after a jury convicted Fuller of

three counts of robbery,1 three counts of conspiracy to commit robbery,2 one

count of theft by unlawful taking,3 one count of conspiracy to commit theft

by unlawful taking, one count of receiving stolen property,4 and one count of

conspiracy to commit receiving stolen property.        In this appeal, Fuller

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
       18 Pa.C.S. § 3701(a)(1)(ii), (iv)-(v).
2
       18 Pa.C.S. § 903(a)(1).
3
       18 Pa.C.S. § 3921(a).
4
       18 Pa.C.S. § 3925(a).
J-S64025-15



challenges the sufficiency of the Commonwealth’s evidence, as well as the

weight assigned to that evidence by the jury. We deny Fuller’s challenges,

and we affirm the judgment of sentence.

      On November 30, 2011, Julio Garcia was working at the Sabor Food

Center in Reading, Pennsylvania, when his wife, Teresa Garcia, entered the

store to have dinner with him.    Just as they finished eating dinner, three

masked men entered the store with knives. One man put a knife in Teresa

Garcia’s face and forced her to the floor, while another ran around the

store’s counter and held a knife at Julio Garcia’s throat. A fourth individual

remained outside of the store.

      The three men inside of the store immediately began demanding to

know where the store’s money was located. Julio Garcia, who by this point

also had been forced to the floor, opened the store’s safe, but it was empty.

Julio Garcia then told his assailants that the money was kept next to the

cash registers in an envelope. The men grabbed the money, and fled the

store. Julio Garcia then locked the store and contacted the authorities.

      Teresa Garcia first believed that the man who held a knife to her face

as a person known as “A.K.,” who was a very close associate of Fuller. The

pair was known in the community to be essentially inseparable. However,

when she selected the perpetrator from a photo array, Teresa Garcia learned

that she was wrong, and that “A.K.” was not involved in the robbery in any

way. The man she thought was “A.K.” was Travis Thomas, the person she

selected from the array.

                                    -2-
J-S64025-15



      On the day after the robbery, the police showed the Garcias a video

that was retrieved from the store’s surveillance camera.       From the video,

both Teresa and Julio Garcia identified Fuller, who they knew as “Marley,” as

the man who remained outside of the store during the robbery. Although

Julio Garcia could not identify Fuller from a photo array, he did identify Fuller

from a photograph at trial, as well as identifying him in person in open court.

Nonetheless, Teresa Garcia knew, and could recognize, Fuller because she

was a friend of Fuller’s girlfriend. Fuller also was an occasional customer in

the store. Based upon his visits to the store, Julio Garcia recognized Fuller

from the backpack that he was wearing during the robbery as well as the

way in which he walked, which Julio believed to be distinctive because of the

sagged way in which Fuller wore his pants. Julio Garcia also was able to see

a partial view of Fuller’s face in the video.

      After hearing the relevant testimony presented at trial and observing

the surveillance video, the jury convicted Fuller of the above-listed crimes.

On November 13, 2012, the trial court sentenced Fuller to an aggregate of

five and one-half to fifteen years’ imprisonment. Fuller filed a post-sentence

motion, in which he asserted that the verdicts were against the weight of the

evidence, and which the trial court denied on November 27, 2012. Fuller did

not file a direct appeal.

      On November 7, 2013, Fuller filed a pro se petition for relief pursuant

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After the

appointment of counsel and an amended petition, the Commonwealth

                                       -3-
J-S64025-15



agreed to Fuller’s request for reinstatement of his direct appeal rights.

Accordingly, on April 20, 2015, the PCRA court entered an order granting

restoration of said rights.

      On April 28, 2015, Fuller filed a notice of appeal. On May 1, 2015, the

trial court directed Fuller to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).         Fuller timely filed a concise

statement. On June 22, 2015, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

      Fuller raises the following four questions for our review:

      Whether the trial court erred in denying [Fuller’s] post-sentence
      motion challenging the weight of the evidence in that the
      identification was the product of guesswork?

      Whether insufficient evidence was presented to convict [Fuller]
      of any of the charges against him insofar as the evidence
      presented consisted largely of inconsistent statements and an
      inaccurate description/identification of [Fuller]?

      Whether insufficient evidence was presented to convict [Fuller]
      of robbery, 18 Pa.C.S. § 3701(a)(1)(ii), where there was no
      evidence that [Fuller] threatened another with or intentionally
      put another in fear of immediate serious bodily injury?

      Whether insufficient evidence was presented to convict [Fuller]
      of robbery, 18 Pa.C.S. § 3701(a)(1)(iv) where there was no
      evidence that [Fuller] inflicted bodily injury upon another or
      threatened another with or intentionally put another in fear of
      immediate bodily injury?

Brief for Fuller at 5 (minor modifications for consistency).

      Fuller’s first issue is a challenge to the weight of the evidence.

      An allegation that the verdict is against the weight of the
      evidence is addressed to the discretion of the trial court.


                                      -4-
J-S64025-15


      Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super.
      2005), (citing Commonwealth v. Sullivan, 820 A.2d 795, 805–
      06 (Pa. Super. 2003), (quoting Commonwealth v. Widmer,
      744 A.2d 745, 751–752 (Pa. 2000))).            The Pennsylvania
      Supreme Court has explained that “[a]ppellate review of a
      weight claim is a review of the exercise of discretion, not of the
      underlying question of whether the verdict is against the weight
      of the evidence.” Widmer, 744 A.2d at 753 (citation omitted).
      To grant a new trial on the basis that the verdict is against the
      weight of the evidence, this Court has explained that “the
      evidence must be ‘so tenuous, vague and uncertain that the
      verdict shocks the conscience of the court.’” Sullivan, 820 A.2d
      at 806 (quoting Commonwealth v. La, 640 A.2d 1336, 1351
      (Pa. Super. 1994)).

      [This Court shall not undertake to reassess credibility of
      witnesses, as] it is well settled that we cannot substitute our
      judgment for that of the trier of fact. Commonwealth v.
      Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
      finder of fact was free to believe the Commonwealth’s witnesses
      and to disbelieve the witness for the [a]ppellant.                See
      Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
      finder of fact is free to believe all, none, or part of the testimony
      presented at trial).


Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)

(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))

(citations modified). Because relief only will be granted where the facts and

inferences of record disclose a palpable abuse of discretion by the trial court,

a court’s denial of a motion for a new trial based upon a challenge to the

weight of the evidence is the least assailable of a court’s rulings.

Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa. 2007) (citing

Commonwealth v. Keaton, 729 A.2d 529, 540-41 (Pa. 1999)).

      Herein, Fuller maintains that the verdicts were against the weight of

the evidence because the jury’s identification of him as the person who

                                      -5-
J-S64025-15


stood outside of the store during the robbery was the product of

“guesswork.”    Fuller contends that “there [was] no evidence that [Fuller]

was properly identified as a participant in, or conspirator to, the crime in any

way.”    Brief for Fuller at 11.    Fuller argues that identifying him by his

backpack was “weak,” because the backpack had no distinguishing features

that conclusively could have linked Fuller to that particular backpack.         He

also asserts that the way that he walks is not so unique as to serve as

reliable identification evidence. Finally, Fuller points to Teresa Garcia’s initial

incorrect identification of “A.K.” as a participant in the crime as proof that

the identification evidence should not have been believed, and that the trial

court abused its discretion in denying his post-sentence motion.

        Even if we assume, arguendo, that Fuller is correct that these

particular pieces of evidence should not be believed, Fuller still does not

account for the remainder of the identification evidence proffered by the

Commonwealth at trial.      Teresa Garcia was able to identify Fuller because

she was a friend of Fuller’s girlfriend.     She also identified Fuller from the

surveillance video. Julio Garcia, although initially not able to identify Fuller

from a police photo, identified Fuller from the video after observing a partial

view of his face.    Julio Garcia was able to identify Fuller from a picture

presented to him a trial, as well as in person in open court.

        The jury heard the testimony, observed the demeanor of the

witnesses, and, perhaps most importantly, viewed the surveillance video.


                                       -6-
J-S64025-15


The jury was free to credit the witnesses and evidence as it saw fit. There

was ample evidence in the record, including a substantial amount that Fuller

does not challenge, from which the jury could have found credible

information identifying Fuller as the look-out member of the robbery quartet.

The jury did so, and we discern nothing in the record that would warrant

finding that the trial court abused its discretion in concluding that the jury’s

finding did not shock the court’s conscience. This issue fails.

      In his final three issues, Fuller challenges the sufficiency of the

evidence. Our standard of review for such claims is well-settled.

      In evaluating a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt. We may not weigh the
      evidence and substitute our judgment for the fact-finder. To
      sustain a conviction, however, the facts and circumstances which
      the Commonwealth must prove must be such that every
      essential element of the crime is established beyond a
      reasonable doubt.

      Lastly, the finder of fact may believe all, some or none of a
      witness’s testimony.

Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations

omitted).

      In his first sufficiency challenge, Fuller maintains that the identification

evidence was insufficient as a matter of law to sustain the verdicts.

However, his argument merely is a reiteration of his challenge to the weight

of the evidence.   Fuller argues that the identification evidence was “weak


                                      -7-
J-S64025-15



and unreliable,” required “speculation and guesswork” and “conjecture,” and

that “[i]t is baffling to understand how, in this case, a jury could find

sufficient    evidence   to   convict   [Fuller]    based   upon   the   speculative

identification evidence.” Brief for Fuller at 13-15.

          A factfinder’s acceptance of some, but not all, testimony does not

render the evidence insufficient. Priest, 18 A.3d at 1240. Any uncertainty

in an eyewitness’s identification of a defendant is a question of the weight of

the evidence, not its sufficiency. See Commonwealth v. Minnis, 458 A.2d

231, 233 (Pa. Super. 1983).             Fuller’s challenge to the identification

testimony goes to its weight, not its sufficiency, and we will not usurp the

role of the trial court as fact-finder by reweighing the evidence. See Priest,

18 A.3d at 1239; Minnis, 458 A.2d at 233.

          Nonetheless, even if we consider the argument as a sufficiency

challenge, Fuller still has not demonstrated that he is entitled to any form of

relief.    As noted earlier, we are bound to review the evidence in the light

most favorable to the Commonwealth.                Once more, Fuller attacks only

certain pieces of the Commonwealth’s case, i.e. Teresa Garcia’s initial belief

that, because she thought “A.K.” was present, Fuller also must have been

present. However, there was ample other evidence identifying Fuller as one

of the actors, including in- and out-of-court identifications of Fuller. Viewed

in the light most favorable to the Commonwealth, the evidence was

sufficient to identify Fuller as one of the conspirators in the robbery beyond

a reasonable doubt.

                                        -8-
J-S64025-15



      In his final two challenges, Fuller argues that the evidence was

insufficient to support his robbery convictions. It is undisputed that Fuller

was not one of the individuals who entered the store and actually

perpetrated the robberies. Accordingly, Fuller focuses his attention upon the

Commonwealth’s proof of the elements of conspiracy. Fuller maintains that

the Commonwealth did not prove that Fuller specifically intended to promote

or facilitate the robberies. See Brief for Fuller at 18. We disagree.

      “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish that the defendant (1) entered 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. Rios, 684 A.2d 1025, 1030 (Pa. 1996)

(citing 18 Pa.C.S.A. § 903). This overt act need not be committed by the

defendant; it need only be committed by a co-conspirator. Commonwealth

v. Johnson, 719 A.2d 778, 784 (Pa. Super. 1998). Even if the conspirator

did not act as a principal in committing the underlying crime, he is still

criminally liable for the actions of his co-conspirators taken in furtherance of

the conspiracy.     Commonwealth v. Soto, 693 A.2d 226, 229-30 (Pa.

Super. 1997).

      Viewing     the   evidence   in   the   light   most   favorable   to   the

Commonwealth, and drawing all reasonable inferences derived therefrom,

the evidence was sufficient to prove that Fuller was guilty of conspiracy to

commit robbery. Fuller contends that the evidence demonstrated only that

                                        -9-
J-S64025-15



he was present at the scene of the crime. As support, Fuller points out that

the surveillance video did not show him either arriving or departing with the

actual robbers.   That may be true, but that does not mean that the

remaining evidence was insufficient to prove him to be a conspirator.      In

other words, arriving or leaving together is not a prerequisite to a

conspiracy.

      Here, the evidence demonstrated that, on the day in question, three

men entered the store and robbed the Garcias at knifepoint. While this was

occurring, Fuller, identified as the fourth man by sufficient and competent

evidence, served as the lookout man for the robbers.      The entire robbery

lasted mere minutes.    However, Fuller never entered the store before or

after. He only stood outside, and was at that post only for the duration of

the robbery. He was not seen in that post before or after the robbery. It

was entirely reasonable for the jury to conclude that, although he may not

have had any direct contact with the robbers, he was there with them to

serve as the lookout man. No other reasonable inference can be drawn from

these facts.

      The evidence was sufficient to identify Fuller, and to prove that he

served as the lookout man for the robbers.      Serving as a lookout man is

certain evidence that Fuller shared a specific, criminal intent with his co-

conspirators to rob the Garcias. Finally, there is no shortage of overt acts

that were taken in furtherance of the conspiracy, including entering the store

with masks and knives, holding the knives to the Garcias’ faces and necks,

                                    - 10 -
J-S64025-15



and Fuller actually serving as the lookout man.   Fuller’s sufficiency claims

must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




                                  - 11 -
