J-S53018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DEZRE SMITH,

                            Appellant               No. 2016 WDA 2013


             Appeal from the Judgment of Sentence of July 9, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003815-2012


BEFORE: DONOHUE, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 25, 2014

        Appellant, Dezre Smith, appeals from the judgment of sentence

entered on July 9, 2013 in the Criminal Division of the Court of Common

Pleas of Allegheny County, as made final by the denial of post-sentence

motions on November 25, 2013. We affirm.

        At the conclusion of trial on April 11, 2013, a jury found Appellant

guilty of one count each of attempted homicide,1 aggravated assault,2

robbery,3 burglary,4 firearms not to be carried without a license,5 recklessly
____________________________________________


1
    18 Pa.C.S.A. § 901(a).
2
    18 Pa.C.S.A. § 2702(a)(1).
3
    18 Pa.C.S.A. § 3701(a)(1)(ii).
4
    18 Pa.C.S.A. § 3502(c)(1).




*Retired Senior Judge assigned to the Superior Court.
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endangering another person,6 and conspiracy to commit criminal homicide.7

On July 9, 2013, Appellant received an aggregate sentence of 180 to 360

months’ incarceration.

        The trial court summarized the facts of this case as follows:

        The charges in this case arose out of two separate home
        invasion robberies. The victim, Timothy Anderson[,] testified
        that[,] on July 24, 2011[,] an individual wearing a mask and
        carrying a silver revolver entered the basement of his home.
        The individual pointed the gun at him and, briefly, at his fiancée,
        Shannon Vargo.        The [individual] then walked over [to
        Anderson’s] desk, removed cash he had there and then left.
        [Although] Anderson followed a few seconds later, he did not see
        where the robber fled. Throughout the robbery, Anderson was
        only able to see the [individual’s] eyes. He did not recognize
        him.

        Approximately six (6) weeks later, on September 12, 2011,
        Anderson was once again in his basement when two men
        entered, one of them holding a silver revolver identical to the
        one brandished by the robber on July 24, 2011. That individual
        had the same mask covering his face as did the person who
        robbed [Anderson] in July. There was another individual who
        was not armed but who also had his face covered with a mask.
        Once again, the robber headed straight for Anderson’s desk.
        Anderson grabbed for the gun. As they struggled, the robber
        discharged the weapon, slightly grazing Anderson’s leg. The
        struggle over the gun continued and the mask slipped down to
        [the] robber’s mouth and Anderson was able to see his face from
        a distance of a few inches for a couple of seconds. The robber
        was able, however, to fire the weapon two more times, striking

                       _______________________
(Footnote Continued)
5
    18 Pa.C.S.A. § 6106(a)(1).
6
    18 Pa.C.S.A. § 2705.
7
    18 Pa.C.S.A. § 903(c).



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     Anderson in the chest and abdomen, causing him to let go of the
     weapon. The assailant and his accomplice then fled.

     As a result of his injuries, [Anderson] was hospitalized for more
     than three months. He was in a coma and/or unconscious from
     the date of the incident through shortly before Thanksgiving.
     When he awoke from his coma, [] Vargo showed him a
     photograph of [Appellant] she had taken from [his] Facebook
     page. She had apparently heard rumors on the street that
     [Appellant] was involved in this incident and secured the
     photograph to show to Anderson. She testified that she showed
     [Anderson] the photograph and asked, “Do you know who this
     is?” Anderson responded, “That’s the man who shot me.” This
     information was relayed to the police who, approximately a week
     later, came to [Anderson’s] hospital [room] and showed him a
     photographic array of eight (8) individuals, one of whom was
     [Appellant]. [Anderson] immediately pointed to [Appellant] and
     stated that he was the person who had robbed him.

     Anderson admitted that he sold marijuana from his home. He
     said that he kept the marijuana and his cash in the desk drawer
     in the basement. He testified that he sold marijuana from his
     home to Matt Potter on several occasions. Potter was present in
     his basement and saw him go to the desk, put the money in it
     and then retrieve the marijuana.

     Anderson related that Potter had called him on July 23, 2012,
     the day before the first robbery, and asked if Anderson could get
     him a quarter pound of marijuana. Anderson told him that he
     would not be available that night but would call him later and tell
     him when he could pick up the marijuana. Later that night,
     [Anderson] called Potter and left a voice mail. Potter called him
     the next day, the 24th, and said that he wanted to buy an ounce
     and Anderson told him it would cost one hundred and twenty
     dollars. Potter never showed up to buy the marijuana.

     After [Appellant] was identified by Anderson, police obtained a
     warrant for his residence. While executing that warrant, they
     learned that [] Potter was [Appellant’s] roommate and that they
     had known each other for years. Potter also admitted to the
     officers that he had purchased marijuana from Anderson on
     several occasions, including in July 2011.




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     [Appellant] testified himself and denied any involvement in
     either robbery. He claimed that on September 12, 2011 he was
     with [] Potter in the afternoon into the evening and then
     coaching a youth football team that night. He also presented
     alibi evidence. George Hazaga, who coached that football team
     with [Appellant], testified that football practice began between
     5:00 p.m. or 6:00 p.m. [O]n September 12, 2011, practice
     began at approximately 5[:00 p.m.] It lasted approximately two
     (2) hours. After practice, Hazaga, [Appellant], Hazaga’s son,
     another individual by the name of Eric and his son stayed at the
     field until approximately 9:00 p.m., cleaning and organizing
     equipment. Hazaga testified that he agreed to give [Appellant] a
     ride home and that they left the field in White Oak Borough at
     approximately 9:00 p.m., arriving at the defendant’s McKeesport
     residence at around 9:15 p.m. When [Appellant] realized he did
     not have a key, they stayed with him and talked in the car for
     between fifteen (15) and twenty (20) minutes. After [Appellant]
     left [the] vehicle, Hazaga left the area. Hazaga also testified
     that when he was interviewed by the detectives, he mentioned
     another night when [Appellant] was present with him and the
     teen attending a bonfire. He said, however, that this did not
     take place on September 12th.

     [Appellant] also called Eric Jenkins, who was a landscaper [and
     Appellant’s employer.] Jenkins said that on September 12th, he
     was with his mother for dinner at approximately 6:00 p.m. and
     stayed there until approximately 9:15 p.m. He arrived back at
     his mother’s house between 9:30 p.m. and 10:00 p.m. He said
     that when he pulled up to her house, [Appellant], George
     Hazaga and George’s son, were sitting in a red minivan outside
     his mother’s home. [Appellant] was living in an apartment at
     Jenkins’ mother’s residence and [he] explained to Jenkins that
     he had not been able to get in because the door was locked.
     They let [Appellant] into the apartment.

     The [Commonwealth charged Appellant with various offenses
     arising out of the two] home invasion robberies which occurred
     on July 24, 2011 and September 12, 2011. For the July 24
     incident, he was charged with one count each of [r]obbery,
     [b]urglary, [c]arrying a [c]oncealed [w]eapon; [t]heft, [c]riminal
     [c]onspiracy; and Violation of Uniform Firearms Act – [person
     n]ot to [p]ossess [f]irearm. In connection with the September
     12 incident, he was charged with one count each of [c]riminal
     [a]ttempt – [h]omicide; [a]ggravated [a]ssault; [r]obbery;

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      [b]urglary; Violation of Uniform Firearms Act – [c]arrying a
      [f]irearm [w]ithout a [l]icense; [r]eckless [e]ndangerment;
      [c]riminal [c]onspiracy; and Violation of the Uniform Firearms
      Act – [person n]ot to [posses] a [f]irearm.[] [Appellant waived
      his right to a jury trial as to the persons not to possess a firearm
      charges and agreed to allow the court to decide those charges.]

      At the conclusion of the trial, the jury acquitted [Appellant] of all
      charges related to the July 24, 2011 incident, but found him
      guilty of the remaining charges.            The [c]ourt acquitted
      [Appellant] of the two [persons not to possess a firearm]
      charges.    [Appellant] filed a written [p]ost[-t]rial [m]otion
      arguing that the verdict was against the weight of the evidence.
      This [m]otion was denied. At sentencing, [Appellant] made an
      oral [m]otion for [e]xtraordinary [r]elief, once again challenging
      the weight and sufficiency of the evidence. This [m]otion was
      likewise denied. The [trial c]ourt then sentenced [Appellant] to
      [] an aggregate sentence of 180 to 360 months [in prison].

      [Appellant] filed a [timely n]otice of [a]ppeal and, pursuant to
      [court o]rder, a [concise s]tatement of [e]rrors [c]omplained of
      on [a]ppeal. [This appeal followed.]

Trial Court Opinion, 3/27/14, at 1-8 (footnote omitted).

      Appellant raises the following claims for our consideration:

      Was the identification evidence insufficient beyond a reasonable
      doubt when the victim, who was under the influence of drugs
      and had just been shot, made an identification based on briefly
      viewing part of the perpetrator’s face as they fought over a gun?

      Did the trial court abuse its discretion in finding that the verdict
      was not against the weight of the evidence since [Appellant] had
      an alibi that was supported by multiple witnesses and the only
      evidence connecting the defendant to this crime was the victim’s
      questionable identification?

Appellant’s Brief at 6.

      In his first claim, Appellant challenges the sufficiency of the evidence

introduced by the Commonwealth to establish that he committed the


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offenses with which he was charged.        Specifically, Appellant argues that

Anderson’s testimony was the only evidence offered to connect him to the

charges in this case and that Anderson’s testimony was legally insufficient

because he was under the influence of drugs, had just been shot, and had

only a brief opportunity to view the assailant when the two fought over a

gun. Appellant notes the lack of physical evidence (e.g. a gun, bandana, or

clothing) and DNA that connected him to the charged offenses.        Appellant

also alleges that Anderson’s testimony was insufficient to prove his

involvement beyond a reasonable doubt given the testimony that supported

Appellant’s alibi defense. This claim merits no relief.

      We review Appellant’s sufficiency challenge under a familiar standard

and scope of review:

      The standard we apply in reviewing the sufficiency of the
      evidence is 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. 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 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.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

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Commonwealth v. Karns, 50 A.3d 158, 161 (Pa. Super. 2012) (case

citation omitted), appeal denied, 65 A.3d 413 (Pa. 2013).

     Within the context of a weight of the evidence claim raised in

Appellant’s concise statement, the trial court rejected Appellant’s challenge

to the identification evidence put forward by the Commonwealth. The trial

court stated:

     [Anderson] had an opportunity to see [Appellant’s] face, up
     close during the robbery. He was shown a photograph when he
     awoke from his coma and was asked simply if he knew who it
     was. He responded, without any prompting, according to the
     evidence presented, that it was the man who shot him. That
     testimony, standing alone, was sufficient to support this verdict.
     [Appellant’s involvement] was corroborated through the
     circumstantial evidence that placed his roommate in
     [Anderson’s] home shortly before the robbery [and credited the
     roommate with knowledge about where Anderson kept his
     money.] The fact that [Appellant] was able to go straight to
     where the money was kept is circumstantial evidence that
     someone he knew had been there and [saw Anderson] access
     money from the desk.

     [Appellant’s] alibi evidence was not such that [it] rendered the
     verdicts [unfounded].     His alibi was not one that made it
     impossible for him to have committed these crimes.           The
     recollections of time were, understandably, vague. At best, the
     alibi evidence placed [Appellant] with others up until
     approximately 9:45 p.m. on the night that the robbery occurred.
     The evidence also established that the distance between
     [Appellant’s] and [Anderson’s] homes was not so far that he
     could not have driven to [Anderson’s] home and committed the
     robbery after George Hazaga and Eric Jenkins had left.
     [Anderson’s] testimony as to when the robbery occurred placed
     it somewhere around 10:00 p.m. In light of the eyewitness
     identification by the victim, the corroboration offered by the
     circumstantial evidence showing that [Appellant’s] roommate
     would have known where [Anderson] kept his money and
     marijuana, coupled with the weakness of [Appellant’s] alibi,

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       certainly means that this verdict [was supported by sufficient
       evidence].

Trial Court Opinion, 3/27/14, at 11-12.

       For the reasons expressed by the trial court, we conclude that the

Commonwealth’s identification evidence was not so weak and inconclusive

that, as a matter of law, no probability of fact could be drawn from the

combined circumstances.          Hence, Appellant is not entitled to relief on his

sufficiency challenge.

       In his second claim, Appellant asserts that the trial court abused its

discretion in denying his request for a new trial on grounds that the verdict

was against the weight of the evidence.8 In developing this claim, Appellant

again targets the Commonwealth’s evidence that he committed the charged

offenses and repeats many of the allegations leveled in support of his

sufficiency challenge.        Appellant claims that Anderson’s testimony was

vague, uncertain, and insufficient to rebut Appellant’s alibi. This claim, too,

merits no relief.

       When reviewing a challenge to the weight of the evidence, our

standard of review is well established:

       [A] verdict is against the weight of the evidence only when the
       jury's verdict is so contrary to the evidence as to shock one's
       sense of justice. It is well established that a weight of the
____________________________________________


8
  Appellant properly preserved his challenge to the weight of the evidence by
raising his claim before the trial court in a post-sentence motion. See
Pa.R.Crim.P. 607(A).



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     evidence claim 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
     court is to determine that notwithstanding all the evidence,
     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.
     A motion for a new trial on the grounds that the verdict is
     contrary to the weight of the evidence concedes that there is
     sufficient evidence to sustain the verdict; thus the trial court is
     under no obligation to view the evidence in the light most
     favorable to the verdict winner.

     Significantly, in a challenge to the weight of the evidence, the
     function of an appellate court on appeal is to review the trial
     court's exercise of discretion based upon a review of the record,
     rather than to consider de novo the underlying question of the
     weight of the evidence. In determining whether this standard
     has been met, appellate review is limited to whether the trial
     judge's discretion was properly exercised, and relief will only be
     granted where the facts and inferences of record disclose a
     palpable abuse of discretion. It is for this reason that the trial
     court's denial of a motion for a new trial based on a weight of
     the evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

quotations and case citations omitted).        Although an appellate court

confronted by a weight of the evidence claim owes considerable deference to

the determinations of the trial court, such deference is not limitless. As our

Supreme Court has 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


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      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) (case citations

omitted).

      In this case, the court rejected Appellant’s request for a new trial

predicated upon the contention that the verdict was against the weight of

the evidence. The court based its decision on the reasons set forth above,

as well as other determinations articulated in its opinion. Our review of the

record confirms that the trial court properly exercised its discretion and that

the verdict was not so contrary to the evidence as to shock one's sense of

justice. For these reasons, we conclude that no relief is due on Appellant’s

weight of the evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2014




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