J-S42032-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
RANDY HUBBARD,                          :
                                        :
                  Appellant             :   No. 1835 MDA 2017

        Appeal from the Judgment of Sentence September 19, 2017
            in the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0000643-2017

BEFORE:        BOWES, MCLAUGHLIN, AND STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 02, 2018

     Randy Hubbard (Appellant) appeals from the judgment of sentence

imposed following his convictions for indecent exposure and open lewdness.

We affirm.

     The Commonwealth charged Appellant with the above-referenced

crimes following an incident at a grocery store on January 9, 2017.    We

begin with a summary of the facts established by the Commonwealth at the

jury trial conducted on September 11-13, 2017.

     The victim is an employee of the Sharp Shopper grocery store in

Middletown, Pennsylvania.     N.T., 9/11-13/2017, at 30.   As part of her

employment, the victim’s duties included pulling cardboard from empty

boxes, and stacking items on shelves throughout the store. Id. The victim

testified that on January 9, 2017, she was stacking boxes of Froot Loops on


*Retired Senior Judge assigned to the Superior Court.
J-S42032-18

shelves when Appellant approached her and offered his assistance with

stacking the boxes. Id. at 31-32. According to the victim, after Appellant

helped her stack the boxes, he stood in front of her with his penis exposed.

Id. at 33. Specifically, he stared at her while he pulled his sweatpants down

with one hand and held his penis with the other.          Id. at 33, 35-36.   She

estimated that he exposed his penis to her for approximately 15 seconds.

Id. at 36. The victim identified Appellant in the courtroom during the trial,

but could not identify the perpetrator out of a photo array when she was

brought into the Lower Swatara Police Department following the incident.

Id. at 34.

      Detective   Robert    Appleby    also   testified    on   behalf   of   the

Commonwealth. Detective Appleby indicated that he was employed with the

Lower Swatara Police Department at the time of the incident and was

assigned to investigate the case.       Detective Appleby testified that his

objective was to identify the perpetrator who was captured on video

surveillance allegedly exposing himself to the victim. Id. at 50. Detective

Appleby testified that the video depicts a man facing the victim with his shirt

up, and approximately 20 seconds later his shirt comes back down. Id. at

55-56. According to Detective Appleby, due to the angle at which the video

was taken, one cannot see if the man’s penis was exposed, but what can be

seen on the video is consistent with the victim’s description of the incident.




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Id. at 56, 69.   The jury had the opportunity to view clips from the video.

Id. at 53.

      Detective Appleby received information that the perpetrator had a

female companion in the store who bought groceries.           Id. at 50.    He

obtained a search warrant in order to ascertain the identity of the person

who accompanied the perpetrator into the store. Id. By using details from

credit card transactions from the register where the female companion had

checked out, Detective Appleby was able to identify the perpetrator’s

companion as Kim Hubbard Halbleib, who was later identified as Appellant’s

sister.1 Id. at 51, 57-59.

      Detective Appleby viewed Halbleib’s Facebook profile and by looking

through the profiles of her friends, he ultimately located Appellant’s profile,

where he observed a photograph of a man who matched the perpetrator’s

image on the video. Id. at 51-52, 59-60. The photograph was tagged with

Appellant’s name. Id. at 59-60.      Detective Appleby went to Appellant’s

residence, and a woman who identified herself as Appellant’s ex-wife said he

was no longer living there, but she provided Detective Appleby with

Appellant’s telephone number.    Id. at 62.   When Detective Appleby called

the number, he spoke to a man who identified himself as Appellant and



1
 Appellant presented the testimony of Halbleib, who admitted that Appellant
accompanied her grocery shopping at Sharp Shopper on January 9, 2017,
and separated from her briefly. Id. at 89-92, 99.



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admitted to being present at Sharp Shopper store around January 9, 2017.

Id.   Appellant denied exposing his penis to the victim and told Detective

Appleby that it was possible he was adjusting his pants. Id. at 63.

      The jury convicted Appellant of the aforementioned crimes.            On

September 19, 2017, the trial court sentenced Appellant to 18 months of

probation. Appellant filed a post-sentence motion challenging the sufficiency

and weight of the evidence, which the trial court denied. This timely-filed

appeal followed. Both Appellant and the trial court ultimately complied with

the mandates of Pa.R.A.P. 1925.

      On appeal, Appellant challenges the sufficiency of the evidence

supporting    his   indecent   exposure   and   open   lewdness   convictions.2

Appellant’s Brief at 8. He also contends the trial court abused its discretion

by denying his post-sentence motion challenging the weight of the evidence.

Id.

      Appellant’s sufficiency and weight        challenges rest upon similar

arguments, so we shall address them together. The crux of Appellant’s

arguments is that the victim’s testimony identifying Appellant as the person

who exposed himself to her is so unreliable and/or contradictory that a jury


2 “A person commits indecent exposure if that person exposes his … genitals
in any public place or in any place where there are present other persons
under circumstances in which he … knows or should know that this conduct
is likely to offend, affront or alarm.” 18 Pa.C.S. § 3127. A person commits
open lewdness “if he does any lewd act which he knows is likely to be
observed by others who would be affronted or alarmed.” 18 Pa.C.S. § 5901.



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may not base its verdict upon such testimony because it amounts to pure

conjecture.   Id. at 18 (citing Commonwealth v. Bennett, 303 A.2d 220

(Pa. Super. 1973) (holding that a verdict may not stand when the only

evidence introduced was so unreliable or contradictory that the jury must

have based its verdict on conjecture instead of reason)).             Appellant

specifically points to the victim’s failure to identify him in a police photo

array, her failure to identify him after the incident during her search of the

store despite the fact he was sitting at the front of the store, and her

testimony on cross-examination wherein she admitted if the trial judge was

sitting next to defense counsel, she would have identified the trial judge as

the perpetrator.   Id. at 16 (citing N.T., 9/11-13/2017, at 46).      Appellant

further argues that the evidence produced by the Commonwealth was

insufficient to establish his identity as the perpetrator of the act in question

because “the only positive identification” of Appellant came from Detective

Appleby, who identified him based on surveillance video, which only shows

him adjusting his shirt. Id. at 21-22.

      Our standard of review in challenges to the sufficiency of the evidence

is to determine

      whether, viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as the] verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      [the above] test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence. Any doubts regarding

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      a defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      The following standard is applicable to challenges to the trial court’s

discretion in determining whether the verdict is against the weight of the

evidence.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice. It has often been stated that a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017) (citation

omitted).

      After reviewing the record, we conclude that Appellant’s reliance upon

Bennett is misplaced.      Our Supreme Court has described Bennett as

follows.

      On appellate review of a criminal conviction, we will not weigh
      the evidence and thereby substitute our judgment for that of the
      finder of fact. To do so would require an assessment of the

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      credibility of the testimony and that is clearly not our function.
      This concept, however, must be distinguished from an equally
      fundamental principle that a verdict of guilt may not be based
      upon surmise or conjecture. Following this principle, courts of
      this jurisdiction have recognized that where evidence offered to
      support a verdict of guilt is so unreliable and/or contradictory as
      to make any verdict based thereon pure conjecture, a jury may
      not be permitted to return such a finding. [Bennett, supra]. …
      The Bennett principle is applicable only where the party having
      the burden of proof presents testimony to support that burden
      which is either so unreliable or contradictory as to make any
      verdict based thereon obviously the result of conjecture and not
      reason. In the facts of the Bennett case, the Commonwealth
      had predicated its case upon the evidence of one individual. The
      record clearly established that the testimony of that witness was
      so contradictory as to render it incapable of reasonable
      reconciliation and therefore the court properly refused to allow a
      verdict of guilt to stand.

Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976).

      In the instant case, Appellant’s conviction was not premised upon one

single witness. There is no dispute that Appellant was present in the store

on the morning of the incident.    Even Appellant’s sister admitted that she

and Appellant were present in the store and were both depicted on the

video. N.T., 9/11-13/2017, at 96, 98-99.

      Through the victim’s testimony, the Commonwealth established that a

man exposed his penis to her for approximately 15 seconds at the Sharp

Shopper grocery store, while staring at her.     Although the victim did not

identify Appellant at the store after the incident, there is no indication that

she saw him during her search of the store. In fact, the victim testified that

she did not look at the seats at the front of the store where Appellant claims

he was sitting.   N.T., 9/11-13/2017, at 44.      While the reliability of the

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victim’s in-court identification of Appellant is questionable based on her

admission during cross-examination that she just as easily could have

identified the trial judge as the perpetrator, she provided a detailed

recollection of the exposure incident itself. The record does not reflect any

inconsistencies regarding her description of the incident.

      Detective Appleby testified that the man who appears in the video is

depicted on video surveillance facing the victim and lifting his shirt up in a

manner that was consistent with the victim’s description of the event. Id. at

56.   Detective Appleby also provided extensive testimony detailing his

investigative work that led him to conclude that Appellant was the person

who exposed his penis to the victim, which included the credit card

transaction of Appellant’s sister, matching the photograph of Appellant on

Facebook to the image in the video, and Appellant’s admission on the

telephone that he was present at the store. The jury had the opportunity to

view the video and the photographs from Facebook to reach its own

conclusion regarding whether the video was consistent with the victim’s

testimony and whether Appellant’s Facebook photographs matched the

image in the video.3       “[T]he Commonwealth may sustain its burden by



3
  The record reflects that the Commonwealth entered clips from the video
surveillance into evidence as Commonwealth Exhibit 2, and the jury viewed
the video while Detective Appleby provided context for what they were
viewing.    Id. at 53.      Additionally, the Commonwealth entered the
photographs viewed by Detective Appleby on Facebook as Commonwealth
(Footnote Continued Next Page)


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means of wholly circumstantial evidence” and “the fact that the evidence

establishing a defendant’s participation in a crime is circumstantial does not

preclude a conviction where the evidence, coupled with the reasonable

inferences drawn therefrom, overcomes the presumption of innocence.”

Lopez, 57 A.3d at 80. Putting these pieces of evidence together, the jury

was entitled to conclude that a man exposed his penis to the victim while

staring at her, and Appellant was that man.

      Thus, when viewing all the evidence at trial in the light most favorable

to the Commonwealth, we conclude that the Commonwealth introduced

sufficient evidence to establish Appellant’s identity as the person who

committed the crimes of indecent exposure and open lewdness in the store.

Furthermore, the trial court did not abuse its discretion in determining the

verdict did not shock its sense of justice.

      Judgment of sentence affirmed.




(Footnote Continued)   _______________________



Exhibits 5-8. Id. at 60. We were unable to locate these exhibits in the
certified record. “It is an appellant’s duty to ensure that the certified record
is complete for purposes of review.” Commonwealth v. Reed, 971 A.2d
1216, 1219 (Pa. 2009). A “failure to ensure that the record provides
sufficient information to conduct a meaningful review constitutes waiver of
the issue sought to be reviewed.” Commonwealth v. Lopez, 57 A.3d 74,
82 (Pa. Super. 2012). Thus, any argument that the video is not consistent
with the victim’s description of the event, or that the photographs and video
do not match, is waived by the failure to ensure that the video and
photographs were transmitted to this Court as part of the certified record.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/02/2018




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