J-S39027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ALVIN BANKS

                            Appellant                   No. 2976 EDA 2014


               Appeal from the Judgment of Sentence May 1, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006388-2012


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 21, 2015

        Alvin Banks appeals the judgment of sentence imposed on May 1,

2014, in the Court of Common Pleas of Philadelphia County. A jury convicted

Banks of two counts of robbery, conspiracy, and possessing an instrument of

crime.1 The trial court sentenced him to an aggregate term of ten to thirty

years’ incarceration.       In this appeal, Banks challenges the sufficiency and

weight of the evidence presented by the Commonwealth to identify him as

the gunman. Based on the submissions by the parties, certified record, and

relevant law, we affirm.

        The trial court set forth the relevant factual history as follows:

        On May 12, 2012, at around 10:30 p.m., Lacey Walerski, one of
        the complainants, walked to the Copper Clover, a neighborhood
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1
    18 Pa.C.S. §§ 3701(a)(1)(ii), 903, and 907(a), respectively.
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     bar in Port Richmond. There, Ms. Walerski met her boyfriend,
     John Buettler, and they left together shortly thereafter. As the
     pair was walking home, they stopped at the corner of Agate
     Street and Allegheny Avenue, a well-lighted place across the
     street from Northeastern Hospital. As Ms. Walerski was saying
     goodnight to Mr. Buettler, an old, red pick-up truck equipped
     with a ladder rack drove up and stopped nearby. [Banks]
     approached with a gun, placed it to Ms. Walerski’s head, and
     forced her and her companion to the ground. Ms. Walerski
     noticed that [Banks] had a distinctive limp as he walked.
     [Banks] demanded that she “give up all [her] shit”. He took her
     earrings, cellular telephone, and handbag. [Banks] then pointed
     the gun at Mr. Buettler’s head, threatened to kill him, and
     demanded his belongings. [Banks] stole Mr. Buettler’s wallet,
     cellular telephone, and sneakers. [Banks] ordered Ms. Walerski
     and Mr. Buettler to count to 100 and not look at him. As
     [Banks] approached the truck, Ms. Walerski noticed another man
     standing next to the driver’s side door. The two men entered
     the truck and drove away.

     After the assailants fled, Ms. Walerski and Mr. Buettler ran into
     Allegheny Avenue and flagged down a police cruiser.           Ms.
     Walerski was visibly shaken and told the officers the details of
     the robbery, including a description of the truck and attackers.
     Ms. Walerski and Mr. Buettler were driven to the police station,
     and eventually were taken to another location where they
     positively identified [Banks] and the driver, later identified as
     Tracey Marrow (a.k.a. Yusef Johnson)

     At 11:45 p.m. on May 12, 2012, Philadelphia Police Officer
     Michael Szelagowski was on routine patrol when he received a
     report of a robbery nearby. Moments later, Officer Szelagowski
     observed Ms. Walerski and Mr. Buettler screaming for help. Ms.
     Walerski was “petrified, shaking, [and] very nervous.”     Mr.
     Buettler was coherent, and did not appear intoxicated.

     Police Officer Danny Wright was also on patrol that evening
     when he received a report of a gun-point robbery where the
     assailants had fled in a red truck with ladder racks.
     Approximately thirty to forty minutes after the report, Officer
     Wright observed a red truck disregard a stop sign. Officer
     Wright activated his cruiser’s lights and siren, but the suspect
     vehicle did not stop for two blocks. As the truck pulled over, the
     passenger alighted and fled on foot. Officer Wright arrested the
     driver, who was subsequently identified as [Banks].           The

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       passenger, Marrow, was later arrested by Officer William Nagy
       and a 9 millimeter-styled BB gun was recovered. During Officer
       Nagy’s pursuit of the [sic] Marrow, the suspect did not have a
       limp. Officers also recovered Ms. Walerski’s and Mr. Buettler’s
       personal items from [Banks], the red truck, and Marrow.

       Detective James Weiss headed the robbery investigation. He
       interviewed both Ms. Walerski and Mr. Buettler, the officers
       involved, and prepared the arrest report for [Banks]. In the
       report when describing the post-incident identification of the
       assailants, Detective Weiss testified that he transposed the
       names of the suspects. The report incorrectly indicated Marrow
       was the perpetrator of the robbery, while [Banks] was the
       getaway driver.      This transposition was contrary to the
       witnesses’ statements and the testimony at trial, and was merely
       a scrivener’s error.

       Finally, Police Officer Eric Pross testified that he was at the
       courthouse for another matter during [Banks’] trial. Officer
       Pross observed [Banks] in the hallway outside the courtroom for
       approximately twenty minutes and testified that [Banks] had an
       “obvious” limp.

Trial Court Opinion, 02/24/2015 at 2-4 (citations and footnotes omitted).

       Following a three-day trial, Banks was found guilty as stated above.

See N.T. 2/28/14 at 13.         Following sentencing, Banks filed a timely post-

sentence motion, which was denied by operation of law on September 3,

2014. This appeal followed.2

       Banks’ first challenge is to the sufficiency of the evidence.        Our

standard of review of the sufficiency of the evidence is as follows:

       The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
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2
  Banks timely complied with the trial court’s order to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).



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       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 … 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 received to be considered, the finder
       of fact while passing upon the credibility of the witnesses and
       the weight of the evidence produced, is free to believe all, part,
       or none of the evidence.

Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011). “[I]n

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 crime[s].” Commonwealth v. Brooks,

7 A.3d 852 (Pa. Super. 2010).

       Banks first challenges the sufficiency of the identification evidence to

prove he was the gunman in the incident in question.3 Specifically, Banks

argues the verdict “was inherently unreliable and could amount to no more

than surmise or conjecture.” Banks’ Brief at 10.

       In support of his argument, Banks claims that the eyewitnesses who

identified him as the gunman indicated that the gunman on the night in

question “was sitting in the park - an obvious reference to Marrow.” Id. at

11.   Banks states this identification is reflected in the contemporaneous

arrest report by Detective Weiss.              Banks argues since “Marrow was in


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3
  Banks does not challenge the sufficiency of the evidence with regard to any
of the elements of the crimes of which he was convicted by the jury.



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possession of the BB gun used in the crime and the proceeds of the crime

[and] Walerski’s purse was on the passenger side of the dashboard where

Marrow had been sitting before fleeing the vehicle,” the evidence “inevitably

pointed to Marrow as the gunman.” Id. Banks maintains that “at no time

did the complainants indicate that             the driver[4] had played a role in the

crime.” Id. We find no merit in these arguments.

       Here, there was direct evidence identifying Banks as the gunman. See

N.T. 2/26/2014 at 33, 46-48, 74.               Both Walerski and Buettler identified

Banks as the gunman at trial.          This testimony, by itself, was sufficient to

sustain Banks’ convictions.         See Commonwealth v. Trinidad, 96 A.3d

1031, 1038 (Pa. Super. 2014), citing Commonwealth v. Wilder, 393 A.2d

927, 928 (Pa. Super. 1978) (positive identification by one witness is

sufficient for conviction).5
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4
  Walerski and Buettler testified that they saw another individual with Banks,
who was standing by the driver’s side of the truck, during the course of the
robbery. That individual was later identified as Marrow. The victims
testified Banks fled in the passenger seat. See N.T. 2/26/2014, at 42, 44,
69 & 77.
5
   Banks’ reliance on the Pennsylvania Supreme Court’s decision in
Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), is misplaced. In
Karkaria, the Court concluded that the testimony of 14-year-old alleged
sexual assault victim was “riddled with critical inconsistencies.” Karkaria,
supra, at 1171. The victim insisted that the assaults occurred only when
her stepbrother babysat her, but she admitted that he no longer did so
during the dates in the indictment. Id. No additional evidence corroborated
her account. Id. at 1168. Conversely, the testimony of both victims
consistently identified Banks as the gunman and placed him at the scene of
the robbery.



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       Additionally, Walerski and Buettler identified Banks at the scene.

Banks wore the same white t-shirt noticed by Walerski at the time of the

robbery.    See id. at 39-40, 48.        Further, Walerski identified Banks by his

distinctive walk.     Walerski testified that when she saw Banks approaching

her, she had noticed his walk and commented to Buettler “Doesn’t he look

like Mike?” Id. at 33. Before positively identifying Banks, Walerski asked

police to see Banks walk, to which he complied.             Id. at 46.   Walerski

testified she asked to see Banks walk “[b]ecause of the way he walked when

I saw him on Allegheny Avenue.” Id. at 46-47. At trial, a police officer also

testified he observed Banks walking with a limp in the hallway of the

courthouse. Id. at 154.

       While the arrest report reflects Marrow was the gunman, Detective

Weiss, who prepared the report, testified that in the report he accidentally

“switched Alvin Banks and [Marrow] for where they were when the original

incident happened.” See N.T., 2/26/2014, at 139.6 Further, in arguing that

Marrow was found with the BB gun, and that the proceeds of the robbery

were found on the passenger side of the truck where Marrow had been

seated, Banks focuses on the evidence “viewed in a light most favorable to

himself.” See Commonwealth v. Emler, 903 A.2d 1273, 1277 (Pa. Super.

2006).     However, as stated above, we must view the evidence in a light

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6
 Weiss reiterated during cross-examination that he “mixed the two people
up.” Id. at 146.



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most favorable to the verdict winner. LaBenne, supra, at 1289. Walerski

identified the BB gun as the one Banks used to rob them. N.T., 2/26/2014,

at 35. Moreover, Banks’ argument regarding the location of the stolen items

on the passenger side ignores the eyewitnesses’ testimony that they saw

Banks flee from the robbery scene in the passenger seat of the truck. The

victims’ identification of Banks as the gunman was sufficient evidence to

establish Banks’ role in the robbery.          Accordingly, Banks’ sufficiency claim

fails.7

          Banks’   second   issue    challenges    the   weight   of   the     evidence.

Specifically, Banks argues, “the jury’s verdict [is] against the weight of the

evidence since the testimony of all Commonwealth witnesses was fraught

with inconsistencies as to the identity of the gunman in the incident in

question.” Banks’ Brief at 3. Banks states that the Commonwealth’s case

relied     “almost   entirely   on   the   eyewitness    testimony     [and]    …   was

contradicted by the complainants’ own admission that they had identified the

gunman in the park as well as every piece of physical evidence[.]” Id. at

12.

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7
  Even if Banks was not the gunman, under 18 Pa.C.S. § 306(a) “a person is
guilty of an offense if it is committed by his own conduct or by the conduct
of [an accomplice].” See Commonwealth v. Calderini, 611 A.2d 206, 208
(Pa. Super. 1992); see also Commonwealth v. Gladden, 665 A.2d 1201,
1208 (Pa. Super. 1995). Here, Banks was an active participant in the
robbery, and would be culpable based upon the conduct of Marrow. See
N.T. 2/27/2014 at 68-70 (jury was instructed on accomplice liability).



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      Pursuant to Rule 607(a), an appellant must preserve the underlying

issue before the trial court in order to prevail on a weight of the evidence

claim. See Commonwealth v. Ferguson, 866 A.2d 403, 409 (Pa. Super.

2004).      “The purpose of this rule is to make clear that a challenge to the

weight of the evidence must be raised with the trial judge or it will be

waived.” Id. (citing Pennsylvania Rules of Criminal Procedure 607). Here,

Banks filed a post-sentence motion contesting the weight of the evidence on

May 1, 2014. Therefore, we may review this claim.

      “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Widmer,

744 A.2d 745, 751-752 (Pa. 2000).            A challenge to the weight of the

evidence “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.”     Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013)

(citation omitted), cert. denied, 134 S. Ct. 1792 (U.S. 2014).

            Appellate 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.
            Because the trial judge has had the opportunity to hear
            and see the evidence presented, an appellate court will
            give the gravest consideration to the findings and reasons
            advanced by the trial judge when review a trial court’s
            determination that the verdict is against the weight of the
            evidence. One of the least assailable reasons for granting
            or denying a new trial is the lower court’s conviction that
            the verdict was or was not against the weight of the



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         evidence and that a new trial should be granted in the
         interest of justice.

      This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.        In
      describing the limits of a trial court’s discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,
         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused where the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted).

      Accordingly, as we review Banks’ claim, we are mindful that we are not

passing on the underlying question of whether the verdicts were against the

weight of the evidence, but rather we are considering whether the trial court

abused its discretion in denying Banks’ motion for a new trial based upon his

claim that the verdict was against the weight of the evidence.

      Here, the trial court, sitting as fact finder, addressed Banks’ weight

claim stating:

      [T]he evidence presented at trial was sufficient to support a
      conviction for [robbery], conspiracy, and possessing an
      instrument of crime. With that analysis in mind, one must
      consider whether the verdict in this case shocks one’s sense of
      justice or represents an abuse of discretion. Given the strength
      and consistency of the testimony presented by the

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     Commonwealth’s witnesses, it does neither.        The evidence,
     found credible by both the jury and this court, was clearly
     presented and showed that [Banks] held a gun to both Ms.
     Walerski and Mr. Buettler, threatened them, and forced them to
     surrender their personal items.      Further both [Banks] and
     Marrow were located a short time later in a vehicle matching the
     description given by the complainants with the proceeds of the
     crime. Additionally, Ms. Walerski’s testimony identifying her
     lame assailant as [Banks] was consistent throughout, and Officer
     Pross’stestimony confirmed that [Banks] indeed walked with a
     pronounced limp. The jury had the opportunity to observe any
     claimed inconsistencies in the witnesses’ testimony and was able
     to take this into account when deliberating. The fact that
     [Banks] was found guilty after all the evidence was presented
     was not contrary to the evidence or shocking to the conscience.

See Trial Court Opinion, 2/24/2015, at 8 (citation omitted).

     In rejecting Banks’ weight claim, the trial court carefully reviewed the

evidence presented to the jury, and explained why the verdict did not shock

one’s conscience. We discern no abuse of discretion. Accordingly, we affirm.

     Judgment of sentenced affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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