J-S50012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 JEREMY OGROSKY                             :
                                            :
                     Appellant              :   No. 1705 WDA 2017

            Appeal from the Judgment of Sentence July 6, 2017
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0003943-2015

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

MEMORANDUM BY BOWES, J.:                            FILED OCTOBER 16, 2018

      Jeremy Ogrosky appeals from the judgment of sentence of ten to twenty

years after a jury found him guilty of robbery, conspiracy to commit robbery,

and theft by unlawful taking. We affirm.

      The trial court offered the following summary of the evidence offered at

Appellant’s trial.

            Alicia Aiello testified that she was working as a teller at First
      Commonwealth Bank on June 17, 2014. She stated that during
      her shift at approximately 2 p.m., she noticed a male enter the
      bank who “was dressed like it was winter” despite the warm
      temperature that day. He was wearing a turtleneck sweater, coat,
      hat, and sunglasses. This struck Aiello as odd, and she testified
      that “my first thought was he was a robber.” At that point, he
      approached her teller station and had money in hand as if he was
      prepared to make a deposit. He then began to “fumble” around
      in a messenger bag, pull out a folder, and place it on the counter.
      He then opened the folder and “was stuttering a little bit.” At that
      point, Aiello noticed that the man was pointing a gun at her. He
      demanded that Aiello give him all of the money at her station.
      She obliged, and gave him all of the money in her drawer. Aiello
      described the gun as black in color and “very similar in the shape
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     and size of a Glock.” She also testified that the man appeared to
     be under the influence of drugs. Aiello stated that his skin color
     also struck her as odd. She testified:

           . . . my first thought it was very unusual because of
           the color of his skin. He just didn’t look normal. It
           looks like he was . . . African American but he didn’t
           have the features. He just was very odd to me. It
           stuck out to me. He had facial hair on his face but it
           just didn’t look normal to me, like, either it looked like
           it was almost painted on or to cover up. If he is
           robbing a bank he doesn’t want people to see his
           features. I get that. That’s what it appeared to me,
           that it was put there and it was not normal.

            She also testified that the man had “the beginning
     markings” of a tattoo on his left hand. Aiello stated that she
     handed the man approximately 700 dollars. She estimated his
     height as “average, maybe a little taller.” She stated that she was
     frightened during the robbery, and she felt that she would be hurt
     if she did not comply with his demands.

           ....

           Alesha McGough testified that on June 17, 2014, she was
     employed as a drug and alcohol treatment counselor at Mon-
     Yough Community Services. On that date, [Appellant] was
     scheduled for an appointment with McGough at 2:30 p.m.
     McGough testified that[Appellant] did not arrive until 2:45 p.m.
     When he arrived, he was wearing a “wife -beater” shirt and brown
     cargo pants and was wearing flip flops. She testified that when
     he arrived, he informed the front desk staff that he wanted to
     meet with McGough. McGough met him in the front lobby.

            [Appellant] informed her that he could not stay to formally
     meet with her because his girlfriend was waiting for him outside
     and he had to leave because he had been working all day. She
     stated that he appeared to be “rather agitated, kind of hyper . . .
     he wouldn’t sit down in the lobby, he was kind of pacing around.”
     She testified that while he was “usually kind of hyper,” his
     behavior that day was “more over the top.” She then walked him
     to the front door, and observed him entering the passenger side
     of a silver-gray four-door sedan. McGough estimated that in total,
     [Appellant] was at the facility for less than [five] minutes. She

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     stated that she did not observe any discoloration to his skin on
     that day, and that he “looked like he was clean.”

            Amanda Crusan testified that she had a romantic
     relationship with [Appellant] for approximately [one] year, which
     began in May 2013. In January 2014, Crusan and [Appellant]
     moved into an apartment together in Clairton, Allegheny County.
     During their relationship, Crusan was a heroin user, and would use
     [five to ten] stamp bags of heroin per day. Crusan testified that
     as of the time of trial, she was no longer was using heroin. She
     also testified that while the pair were living together, both of them
     were unemployed and were struggling financially. Crusan testified
     that [Appellant] was also a heroin user, and that they both
     purchased heroin from a man named Malcolm.

            In June 2014, Crusan stated they owed a drug debt to
     Malcolm, and their utilities had been shut off as they had not been
     paid. To solve their financial issues, [Appellant] suggested to
     Crusan that they should rob a bank. At first, Crusan did not take
     his suggestion seriously, until he suggested it again a few weeks
     later. [Appellant] told Crusan that he would have to alter his
     appearance using makeup so that there would be a possibility that
     “he could get away with it.” Although the two did not discuss what
     bank they were to rob, they traveled to Walgreen’s in Lower
     Burrell approximately one week prior to the robbery. [Appellant]
     stole concealer, makeup applicators, and mascara.

           At that point, their plan to rob a bank began to fully form.
     [Appellant] stated that they should use a rental car, and after the
     robbery, he would lay in the trunk so that he could remove the
     makeup, shave his beard, and change his clothes.            Crusan
     purchased a gallon of water, razors, and makeup remover at Wal-
     Mart approximately [two] days before the robbery. Around that
     time, [Appellant] decided that he would rob First Commonwealth
     Bank in Salem Township.         [Appellant] and Crusan slept at
     [Appellant’s] father’s home on the nights leading up to the
     robbery. They returned to their apartment on the morning of June
     17, 2014 to prepare for the robbery. Crusan testified:

           . . . we started getting prepared for him to rob a bank.
           We put on the concealer, covered up his neck and his
           face and then used mascara to change the color of his
           hair. He . . . wore a black windbreaker suit, pants
           with matching coat and white shirt underneath it, and

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           he had wrapped, I don’t know if it was a white shirt or
           tank top, around his neck to conceal the tattoos on his
           neck.

           Crusan stated that she applied mascara to his hair and
     beard, and ensured that all of his exposed skin was covered with
     makeup. [Appellant] also was wearing sunglasses before he left
     the residence. Crusan stated that she was already in possession
     of a rental car, a silver Kia, as she had crashed her car
     approximately two weeks prior to that date. [Appellant] was also
     in possession of a black BB gun when he left the residence,
     although she did not believe that he would use it during the
     commission of the robbery.

            When Crusan and [Appellant] arrived at the bank, Crusan
     testified that she parked in a parking lot of a McDonald’s adjacent
     to the bank. At that point, Crusan made a phone call to 9-1-1
     using a cell phone that was no longer in service. She stated that
     “I had called and I said that my name was Sara and . . . my
     neighbor was threatening to shoot my dog and that I needed
     police assistance.” When the 9-1-1 operated asked Crusan for her
     phone number, she hung up and removed the battery from the
     phone. At some point during the phone call, [Appellant] exited
     the vehicle and walked in the direction of the bank.

            When [Appellant] returned to Crusan’s vehicle, he entered
     the trunk. He remained in the trunk for approximately 20-25
     minutes. When [Appellant] climbed back into the front seat from
     the trunk, Crusan stated that she was on SR 30 in North Versailles,
     Allegheny County. Crusan stated that [Appellant] had changed
     his clothes and was wearing plaid shorts and a white tank top. He
     had shaved his head and face, and removed the makeup. He was
     also wearing flip-flops. [Appellant] counted the money he had
     recovered at the bank, and relayed to Crusan that he had
     recovered approximately 700 dollars.

           Crusan stated that they eventually arrived at the drug and
     alcohol counseling center for [Appellant’s] appointment.
     [Appellant] entered the facility and returned approximately [five]
     minutes later. Crusan then drove [Appellant] to his mother’s
     house in Elizabeth, Allegheny County. Crusan testified that she
     believed that [Appellant] disposed of the clothing he used in the
     commission of the robbery at his mother’s house. [Appellant] also
     met with Malcolm, who sold him heroin, and paid him the debt

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     which was owed to him. Crusan stated that [Appellant] gave all
     of the money he received during the robbery to Malcolm.

            A few days after the robbery, Crusan spoke to Trooper Gross
     during a traffic stop. Trooper Gross showed her photographs
     taken from surveillance footage during the robbery.           When
     Trooper Gross asked her whether she knew who had robbed the
     bank, Crusan replied that it was probably a hitchhiker that she
     had picked up earlier in the day on June 17, 2014. She informed
     Trooper Gross that she (sic) had picked up the hitchhiker at
     Sheetz on Mosside Boulevard in Monroeville. She stated that after
     she picked up the hitchhiker, she drove toward Vandergrift to visit
     her children. She told the trooper that the hitchhiker “looked like
     a Muslim.” She also stated that she dropped the hitchhiker off at
     the McDonald’s in Delmont. She told the trooper that [Appellant]
     had been at his mother’s house at the time of the robbery because
     he had a drug and alcohol appointment later that day. She told
     Trooper Gross that she never made it to Vandergrift, and turned
     around to pick up [Appellant] for his appointment. She testified
     at trial that she told Trooper Gross that the hitchhiker was Muslim
     for the following reason:

           . . . we had discussed what had happened at the bank
           [and] [Appellant] told me that he used . . . an accent
           that would have - that somebody was Muslim would
           have sounded like, like, somebody from - I don’t
           [know], like, Iraq or Afghanistan, like, that area. He
           said he sounded like that. That’s why I said he was
           Muslim.

     Crusan said that when she talked to Trooper Gross, nothing in her
     story was the truth.

           After “a substantial period of time,” Crusan went back to the
     police, though neither she nor [Appellant] had been charged with
     the bank robbery. Crusan stated: “At that point I was clean and
     my mind was clear. I had a lot of time to think about it, about my
     family, about my kids, and it was the right thing to do.” She
     traveled to the Vandergrift Police Department and spoke with
     Corporal Fennell of the Pennsylvania State Police and informed
     him of what transpired.

           ....


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           Brian Gross, retired Trooper for the Pennsylvania State
     Police, testified that the first time he spoke with Amanda Crusan
     [she] had informed him that she picked up a Muslim hitchhiker
     the day of the bank robbery. When Gross asked her [to] repeat
     her story, she again told him about the Muslim hitchhiker.

            Gross stated that he conducted searches of [Appellant] and
     Crusan’s vehicles and the pair’s residence on June 21, 2014. From
     Crusan’s vehicle he recovered aviator sunglasses and a backpack.
     He also located a disposable razor in the driver side door, and on
     the floor. At the residence, Gross recovered dark-colored makeup
     and a black messenger bag.

           The parties agreed to the following stipulation:

           On the afternoon of June 19, 2014, Patrolman Nathan
     Rigatti of the Vandergrift Police Department conducted a traffic
     stop of a silver Kia Forte. The vehicle had been rented by Amanda
     Crusan and was being operated by [Appellant] with Amanda
     Crusan in the passenger seat. The Vandergrift Police notified the
     Pennsylvania Board of Probation and Parole of the traffic stop, and
     then later notified the Pennsylvania State Police at Kiski.

            Joyce Douglass, state parole agent, testified that in June
     2014, she was supervising [Appellant]. As a result of the traffic
     stop involving [Appellant] on June 19, 2014, Douglass conducted
     a parole search at [Appellant’s] residence on the same date. Upon
     arrival, she recovered a CO2 pistol from [Appellant]’s living room.
     Douglass explained the pistol resembled a Glock pistol. Douglass
     later learned that the CO2 pistol had been destroyed so that it was
     unavailable at trial.

Trial Court Opinion, 10/25/17, at 2-9 (footnote and citations omitted).

     Upon this evidence, the jury convicted Appellant of robbery, conspiracy

to commit robbery, and theft by unlawful taking. As Appellant had a prior

conviction for a violent crime, the Commonwealth gave notice of its intent to




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seek a mandatory minimum sentence of ten years pursuant to 42 Pa.C.S.

§ 9714(a).1

       Appellant was sentenced to ten to twenty years imprisonment on July

6, 2017. He filed a timely post-sentence motion which was denied by opinion

and order of October 25, 2017. Appellant filed a timely notice of appeal, and

both Appellant and the trial court complied with Pa.R.A.P. 1925.2 On appeal,

he asks this Court to review whether the evidence was sufficient to sustain his

convictions, and whether the verdict was against the weight of the evidence.

Appellant’s brief at 4.

       We first consider our standard of review applicable to Appellant’s

sufficiency challenge.

       Because a determination of evidentiary sufficiency presents a
       question of law, our standard of review is de novo and our scope
       of review is plenary. In reviewing the sufficiency of the evidence,
       we must determine whether the evidence admitted at trial and all
       reasonable inferences drawn therefrom, viewed in the light most
       favorable to the Commonwealth as verdict winner, were sufficient
       to prove every element of the offense beyond a reasonable doubt.
       [T]he facts and circumstances established by the Commonwealth
       need not preclude every possibility of innocence. It is within the
       province of the fact-finder to determine the weight to be accorded
       to each witness’s testimony and to believe all, part, or none of the
       evidence. The Commonwealth may sustain its burden of proving
____________________________________________


1The statute providing mandatory minimum sentences based upon the fact of
prior convictions is not unconstitutional under Alleyne v. United States, 570
U.S. 99 (2013). See Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.Super.
2015) (holding 42 Pa.C.S. § 9714(a) is not unconstitutional under Alleyne).

2 The trial court’ statement pursuant to Pa.R.A.P. 1925(a) indicated that the
reasons for its decision were offered in its October 25, 2017 opinion
accompanying the denial of Appellant’s post-sentence motion.

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      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

      The only element of the offenses that Appellant challenges on appeal is

that of identity. Specifically, Appellant contends that the perpetrator of the

robbery was “either a light-skinned African American or Semitic male,” while

Appellant is Caucasian. Appellant’s brief at 9. He also notes that he is one or

two inches shorter than the bank teller described, and challenges the ability

of someone to clean off all of the makeup and shave his face and beard in the

trunk of a small vehicle. Id. Appellant further questions the credibility of

Crusan, given that she initially identified someone who did not meet

Appellant’s description, and had the motive to implicate Appellant in order

seek favorable treatment for her cooperation with the prosecution. Id.

      Crusan testified under oath at trial that Appellant was her co-conspirator

who committed the robbery. That alone is sufficient evidence to establish the

identity element of the crimes, even without the substantial corroborating

evidence, detailed above. Commonwealth v. Johnson, 180 A.3d 474, 478

(Pa.Super. 2018) (“A [witness’s] in-court testimony, identifying the defendant

as the perpetrator of a crime, is by itself sufficient to establish the identity

element of that crime”); Commonwealth v. Wilder, 393 A.2d 927, 928




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(Pa.Super. 1978) (“[I]t is settled that a positive identification by one witness

is sufficient for conviction.”).

      Appellant’s arguments more properly go to the weight, not the

sufficiency, of the evidence. Indeed, he invokes the same arguments in his

brief to this Court. See Appellant’s brief at 10. The following principles apply

to our review of that challenge.

      Appellate review of a weight claim is a review of the [trial court’s]
      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
      reviewing 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 evidence
      and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).

      The trial court, having reviewed all of the evidence in connection with

its disposition of Appellant’s sufficiency challenge, offered the following

analysis of Appellant’s claim that the evidence was against the weight of the

evidence.

      At trial, the jury determined that Amanda Crusan was a credible
      witness, and chose to believe her testimony regarding
      [Appellant’s] role in the robbery.

             It is not the [trial court’s] role to disturb the jury’s credibility
      determinations. Based on the [c]ourt’s own independent review
      of the record, the guilty verdict did not shock the [c]ourt’s sense
      of justice, nor was it the result of pure conjecture.

Trial Court Opinion, 10/25/17, at 15.

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      Our review of the record reveals no inconsistencies in the evidence or

need for speculation on the part of the jury. These Commonwealth witnesses,

if believed, established Appellant’s identity as the bank robber. Accordingly,

our review of the record reveals no abuse of discretion on the part of the trial

court in holding that the verdict did not shock its conscience, and Appellant is

entitled to no relief from this Court on his weight-of-the-evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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