J. S27029/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
TNODELL PIERRE-PAUL,                        :
                                            :
                          Appellant         :     No. 1411 MDA 2015

             Appeal from the Judgement of Sentence May 20, 2015
                In the Court of Common Pleas of Berks County
               Criminal Division No(s): CP-06-CR-0004973-2013

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 08, 2016

        Appellant, Tnodell Pierre-Paul, appeals from the May 20, 2015

Judgement of Sentence entered in the Berks County Court of Common Pleas.

After careful review, we affirm on the basis of the trial court’s Opinion, which

found (i) there was sufficient evidence to support the jury’s verdict, and (ii)

the jury’s verdict was not against the weight of the evidence.

        After a two-day trial, a jury convicted Appellant of two counts of

Robbery, two counts of Conspiracy to Commit Robbery, two counts of Simple

Assault, two counts of Conspiracy to Commit Simple Assault, two counts of

Theft by Unlawful Taking or Dispositions, two counts of Conspiracy to

Commit Theft by Unlawful Taking or Disposition, two counts of Receiving


*
    Former Justice specially assigned to the Superior Court.
J.S27029/16


Stolen Property, two counts of Conspiracy to Commit Receiving Stolen

Property, two counts of Recklessly Endangering Another Person, and two

counts of Conspiracy to Commit Recklessly Endangering Another Person. On

May 20, 2015, the Honorable Thomas G. Parisi sentenced Appellant to four

to ten years of incarceration on each of the Robbery counts, to run

concurrently, and a consecutive term of three years of special probation on

one of the Conspiracy to Commit Robbery counts.

       The trial court set forth the relevant factual and procedural history of

this case in its November 12, 2015 Opinion and we adopt its recitation for

purposes of this appeal. See Trial Ct. Op., 11/12/15, at 1-4.

      Appellant raises the following issues on appeal:

      1.     Whether the evidence presented at trial was insufficient as
      a matter of law wherein the Commonwealth's evidence
      presented at trial failed to establish an identification of the
      defendant at the scene of the crime, the evidence failed to
      establish an identification of the defendant as one of the
      individuals in the automobile stopped by the police following the
      commission of a robbery, and the evidence presented failed to
      establish any agreement to engage in any criminal conduct?

      2.     Whether the verdict was against the weight of the
      evidence wherein the verdict is so contrary to the evidence and
      shocks one's sense of justice where there was no testimony
      whatsoever placing the defendant at the scene of the crime nor
      placing the defendant in the vehicle at the time the vehicle is
      stopped by back-up officers and there was no testimony
      identifying the green hoodie found in the front seat of the
      stopped vehicle as the same dark hoodie worn by one of the
      perpetrators of the robbery?

Appellant’s Brief at 4.




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J.S27029/16


      In his first issue, Appellant challenges only the sufficiency of the

identification evidence against him.        Specifically, Appellant claims the

Commonwealth failed to establish an identification of Appellant as both (a) a

passenger in the vehicle stopped near the scene of the crime, and (b) one of

the co-conspirators or perpetrators of the offenses.

      In reviewing the sufficiency of the evidence, our standard of review is

as follows:

         The standard of review for a challenge to the sufficiency of
         the evidence is to determine whether, when viewed in a
         light most favorable to the verdict winner, the evidence at
         trial and all reasonable inferences therefrom is sufficient
         for the trier of fact to find that each element of the crimes
         charged is established beyond a reasonable doubt. The
         Commonwealth may sustain its burden of proving every
         element beyond a reasonable doubt by means of wholly
         circumstantial evidence.

         The facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. Any doubt raised as to the accused's guilt is to
         be resolved by the fact-finder. As an appellate court, we
         do not assess credibility nor do we assign weight to any of
         the testimony of record. Therefore, we will not disturb the
         verdict 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.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotations omitted).

      Specifically regarding the issue of identity, our Supreme Court has

stated that:

      Proof beyond a reasonable doubt of the identity of the accused
      as the person who committed the crime is essential to a


                                      -3-
J.S27029/16


       conviction. The evidence of identification, however, [need not]
       be positive and certain in order to convict, although any
       indefiniteness and uncertainty in the identification testimony
       goes to its weight. Direct evidence of identity is, of course, not
       necessary and a defendant may be convicted solely on
       circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations

omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned opinion of the trial

court, we conclude that there is no merit to Appellant’s sufficiency of the

evidence claim on appeal.       Accordingly, we affirm on the basis of the trial

court’s opinion, which (i) notes the arresting officer’s testimony at trial

positively identifying Appellant as a passenger in the vehicle; and (ii)

catalogs the substantial circumstantial evidence linking Appellant to the

robbery and demonstrating Appellant acted as part of a conspiracy.               See

Trial Ct. Op., at 5-7.

       We next address Appellant’s assertion that the jury’s verdict was

against the weight of the evidence.           In support, Appellant puts forth the

same    argument     as   his   sufficiency     claim;   namely,   challenging   the

Commonwealth identification evidence linking Appellant to the crime.

Appellant’s Brief at 15-17.

       To begin, we note that the weight of the evidence “is exclusively for

the finder of fact who is free to believe all, part, or none of the evidence and

to determine the credibility of the witnesses.”               Commonwealth v.


                                       -4-
J.S27029/16


Champney, 832 A.2d 403, 408 (Pa. 2003) (quotation and citations

omitted).   A trial court reviewing a challenge to the weight given the

evidence may grant relief only if “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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

      The trial court's denial of a weight claim is the least assailable of its

rulings. Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa. 2008); see

Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (stating

that because trial court is in best position to view the evidence presented, an

appellate court will give that court ”the utmost consideration” when

reviewing its weight determination). On appeal, this Court may not consider

the underlying question of whether the verdict is against the weight of the

evidence, and is instead limited to evaluating only the trial court’s exercise

of discretion in denying that claim. Commonwealth v. Morales, 91 A.3d

80, 91 (Pa. 2014). As our Supreme Court has made clear, reversal is only

appropriate “where the facts and inferences disclose a palpable abuse of

discretion[.]” Id. (citations omitted) (emphasis in original).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned opinion of the trial

court, we conclude that there is no merit to Appellant’s weight of the




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J.S27029/16


evidence claim on appeal.    Accordingly, we affirm on the basis of the trial

court’s opinion. See Trial Ct. Op., at 7-8.

      The parties are instructed to attach a copy of the trial court’s opinion

to all future filings.

      Judgment of Sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2016




                                     -6-
                                                                                           Circulated 05/13/2016 03:04 PM




      COMMONWEAL TH OF PENNSYLVANIA                              IN THE COURT OF COMMON PLEAS
                                                                 BERKS COUNTY, PA
                              v.                                 CRIMINAL DIVISION
                                                                 NO. CP-06-CR-4973-13
      TNODELL PIERRE-PAUL,
                  Defendant                                      JUDGE THOMAS G. P ARJSI

v(elly S. Kline, Esqu;e, Appeal Attorney for the Defendant
 Alisa R. Hobart, Esquire, Appeal Attorney for the Commonwealth

      MEMORANDUM-0P-1NION, Thomas G. Parisi. ~                                        November 12, 2015

             After a two-day jury trial ending on May 20, 2015, Defendant/Appellant Tnodell Pierre-

   Paul was found guilty of the following ~ffenses: two counts of Robbery', two. counts of

      Conspiracy to Commit Robbery', two counts of Simple Assault', two counts of Conspiracy to

   Commit Simple Assault", two counts of Theft by Unlawful Taking or Disposition', two counts of

   Conspiracy to Commit Theft by Unlawful Taking or Disposition         6, two   counts of Receiving

   Stolen Property", two counts of Conspiracy to Commit Receiving Stolen Property'', two counts of

   Recklessly Endangering Another Person", and two counts of Conspiracy to Commit Recklessly

   Endangering Another Person'". On May 20, 2015, this court sentenced Defendant to not less than

   four (4) years of incarceration, nor more than ten (10) years of incarceration on Count 1 ·::_

  Robbery and Count 3 -Robbery, to run concurrently. On Count 2 - Conspiracy to Commit




  1
     18 Pa. C.S.A. § 3701(a)(l)(ii).
  2
     18 Pa. C.S.A. § 903(a)(I); 18 Pa. C.S.A. § 3701(a)(1Xii).
  3
     18 Pa. C.S.A. § 270l(a)(3).
  4
     18 Pa. C.S.A. § 903(a)(l); 18 Pa. C.S.A. § 2701(a)(3).
  s 18 Pa. C.S.A. § 3921(a).
  6
  7
     18 Pa. C.S.A.
                .
                   § 903(a)(l); 18 Pa. C.S.A. § 392l(a).
     18 Pa. C.S.A. § ;J925(a).
  8
     18 Pa. C.S.A. § 903(a)(l); 18 Pa. C.S.t\. § 3925(a)
  9
     18 Pa. C.S.A. § 2705                          ·
  10
      18 Pa C.S.A § 903(a)(l); 18 Pa. C.S.A. § 2705


                                                             1
 Robbery, this court sentenced Defendant to three (3) years of special probation to begin at the

 expiration of Count 1.

            Trial counsel filed a Post-Sentence Motion titled "Motion in Arrest of Judgment and

Motion for a New Trial" on June 2, 2015. On June 19, 2015, a hearing was held on the motion.

The post-sentence motion was denied on July 15, 2015.

            A timely notice of appeal was filed on Defendant's behalf on August 17, 2015, and the

following issues are raised for review:


       1.            Whether the evidence presented at trial was insufficient as a matter oflaw
            wherein the Commonwealth's evidence presented at trial failed to establish an
            identification of the defendant at the scene of the crime, the evidence failed to establish
            an identification of the def endant as one of the individuals in tpe automobile stopped by
            the police following the commission of a robbery, and the evidence presented failed to
            establish.an agreement to engage in any criminal conduct?

      2.        Whether the verdict was against the weight of the evidence wherein the verdict is
        so contrary to the evidence and shocks one's sense of justice where there was no
        testimony whatsoever placing the defendant at the scene of the crime nor placing the
        defendant at the scene of the crime nor placing the defendant in the vehicle at the time the
        vehicle is stopped by back-up officers and there was not testimony identifying the green
        hoodie found in the front seat of the stopped vehicle as the same green hoodie worn by
        one of the perpetrators of the robbery?        ·


      3.        Whether the trial court erred as a matter of law in denying the defendant's motion
        for judgment of acquittal as the evidence failed to establish the defendant's guilt beyond a
        reasonable doubt?


Appellant's Concise Statement of Errors, 9/28/1_5.

                                         FACTUAL FINDINGS

        In the early morning hours of October 14, 2013, at approximately 12:30 am, Michael

Ortiz and Eric Amole began to walk home from their shifts at Stokesay Castle, which is a

banquet hall and restaurant. Jury Trial Transcript (Tr.) at 42-43. The two victims stopped at the

Getty at    gth   and Walnut Streets, in Reading.Berks County, Pennsylvania around 1:30 am. After

                                                      2
 leaving the Getty, the victims were stopped by a group of men, near the intersection of 6th and

 Walnut Streets. (fr. at 48). Three men approached the victims, while two others waited at the

end of the block. One man, wearing a red hoodie, with the hood pulled up, obscuring his face,

told Michael Ortiz to "Run your pockets, nigger". The suspect in the red hoodie then pointed the

gun directly at Ortiz's chest. (Tr.at 51). Another suspect, wearing a bandana covering his face

and a dark hoodie, came behind Eric Amole and put .a gun to bis head. Another suspect stood

directly behind the two suspects who were pointing the guns. Both victims gave the robbers their

belongings, including a black JanSport backpack, another backpack with a red logo, both of their

cell phones, and both of their wallets. (fr. at 53). The victims then ran away from the suspects

and to the home of Michael Ortiz, where they called police. (Tr. at 68-69).

        Officer Christopher Bealer heard the call come in on the radio of a reported robbery and

drove toward the scene of the robbery. A description of the suspects was given over the radio

which identified five males, one of whom was wearing a red hoodie. As Officer Bealer was

driving to the sceneof the tobbery. he came upon four males, one of whom was wearing a red

hoodie, less than five minutes after the call had come in. When Officer Bealer saw these

individuals he was less than two blocks from the scene of the robbery. (Tr. at 96-97).

       The group of individuals turned off the street that Officer Bealer was traveling on, and

Officer Bealer lost sight of the group for approximately one minute. Officer Bealer subsequently

heard squealing tires and saw a car going south in the 300 block of Reed Street, moving toward

bis vehicle. Officer Bealer followed the car for approximately five blocks before pulling the car

over in the 200 block of Oley Street. (Tr. at 99). The car, a blue Stratus, contained four

occupants. As Officer Bealer approached the car, he noticed the passenger in the back left seat




                                                 3
 tucking a ·red sweatshirt between his legs. Officer Bealer then waited for other officers to arrive

and assist as the reported robbery involved handguns. (Tr. at 99).

         Once other officers arrived on scene, the occupants of the car were then removed from

the car and directed to sit down, in a line, on the sidewalk. An officer drove the victims past the

suspects on the street, slowly. The victims were unable to specifically identify any of the

suspects as the individuals who had robbed them. (Tr. at_ 84). Officers obtained identification of

the occupants in the car and identified Tnodell Pierre-Paul as the front seat passenger. (Tr. at

104). After the occupants were removed from the car, the car was towed to the police sallyport.

(Tr. at 116).

        After the owner of the vehicle signed a consent waiver, the vehicle was searched. In the

trunk of the car, officers found a wallet and a cell phone that were identified as belonging to one

of the victims. (Tr. at 122). Also in the trunk of the car, officers found two (2) handguns and one

(1) Jimenez semi pistol .22. Tr. at 118-119 .. 0fficers found a dark sweatshirt in the front

passenger side of the vehicle, as well as a baodana and a wallet. (Tr. at 146). The wallet and

bandana were found on the floor in the front, directly in front of the front passenger seat, and the

wallet contained a Pennsylvania driver's license for Tnodell Pierre-Paul, as well as a Visa Bank

of America card and an I-Lead Charter School photo 1.D. (Tr. at 148-149). Officers searched the

backseat oft~e car and found a black JanSport backpack and another backpack with a red logo

on it, which were later identified as belonging to the victims. (Tr. at 150). Further, Officers found

a red hoodie directly behind the driver's side seat. (Tr. at 151-152). These items matched the

description of the perpetrator's attire given by the victims. A warrant was issued for the arrest of

Tnodell Pierre-Paul.




                                                  4
                                                        DISCUSSION

           I.   Sufficiency of Evidence

                The standard of review challenging the sufficiency of the evidence at trial is well-settled.

                          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 ofthe 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 trier 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.         ,

        Commonwealth v. Kn.ox, 50 A.3d 749, 754 (Pa. Super. 2012) (citing Commonwealth v. Brown,

        23 A.3d 544, 559-60 (Pa. Super. 2011) (en bane).

                A. Identification of Defendant at the Scene of the Crime and as a Passenger in the

                   Automobile

                The Defendant claims the Commonwealth's evidence failed to establish an identification

·. .:   of the Defendant at the scene of the crime and as a passenger in the automobile. A review of the

        record in the light most favorable to the verdict winner indicates that the Commonwealth

        presented sufficient evidence that the Defendant was at the scene of the crime and a passenger in

        the automobile.



                                                           5
        The Commonwealth may sustain its burden through the use of wholly circumstantial

 evidence. In this case, the Commonwealth was able to show evidence that the Defendant was

 identified as the front passenger in the blue Stratus that was stopped. The Commonwealth was

 able to show that a wallet, 'which contained the Defendant's driver license, was on the floor

directly in front of the front passenger seat, where the Defendant was identified as sitting.

Further, the Commonwealth provided evidence that a bandana and a dark hoodie sweatshirt were

also located on the floor in front of the front passenger seat. These items were consistent with the

description given by the victims, and the video shown by the Commonwealth during trial.

Finally, the blue Stratus that was stopped contained many of the items taken from the victims,

including their backpacks, wallets, and phones.

        Although none of the pieces of circumstantial evidence, alone, would be sufficient to

support a finding of guilt beyond a reasonable doubt, when all the circumstantial evidence is

viewed together, it reasonably and rationally supported the verdict reached by the jury. For these

reasons, the Court finds the record sufficient to support the jury's verdict.

       B. Agreement to Engage in Criminal Activity

       To be convicted of Conspiracy, the Commonwealth must demonstrate:

(1) the defendant intended to commit or aid in the commission of the object crime; (2) the

defendant entered into an agreement with another to engag_e in the object crime; and (3) the

defendant or another co-conspirator committed an overt act in furtherance of the object crime.

18 Pa. C. S. A.§ 903(a)(l); Commonwealthv. Johnson, 985 A.2d 915, 921 (Pa. 2009). 'The

defendant's intent as well as the agreement is almost always proven through circumstantial
                                                           ..
evidence, such as by the relations, conduct or circumstances of the parties or overt acts on the
                           .                                              .
part of the co-conspirators." Commonwealth v. Murphy,844 A.2d 1228, 1238 (2004) ..



                                                  6
         In this case, the Commonwealth presented sufficient circumstantial evidence that the

 Defendant had the intent to commit this crime, entered into an agreement to engage in conduct

 which constituted acrime, and committed an overt act in furtherance of the crime. The

 Commonwealth presented testimony from the victim which stated that the suspect wearing a

 bandana and a dark hoodie sweatshirt held a gun to the head of Eric Amole, while another

 suspect demanded the victims empty their pockets. Officer Bealer testified that the Defendant

 was the front seat passenger in the car, and Officer .Carcheri Gingrasso testified that a bandana

and dark hoodie matching the description given by the victims was found on the floor directly in

front of the front passenger seat. Tr. at 104, 146. Sufficient evidence was present to enable to

jury to find the Defendant guilty beyond a reasonable doubt on the charges of conspiracy.

  II.   Weight of the Evidence

        An allegation that the verdict was against the weight of the evidence will be reviewed on

a basis of an abuse of discretion standard. Commonwealth v, Sullivan, 820 A.2d 795, 805-06 (Pa.

Super. 2003). In determining whether the verdict is against the weight of the evidence, the role

of the trial e:_ourt is to determine whether "notwithstanding all the facts, certain facts are so

clearly of greater weight to ignore them or to give them equal weight with all the facts is to deny

justice." Commonwealthv. Widmer, 744 A.2d 745, 752 (Pa. 2000). Thus, a new trial should be

awarded only 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." Sullivan, 820 A.2d at. at 806.

        After reviewing the record, the verdict of the jury does not come as a shock to this court.

The evidence presented at trial was not contrary to the verdict~ of the jury. The jury has the right




                                                   7
to weigh the .testimony of each witness and determine which evidence it finds credible.

Commonwealth v. lvfcCalman, 795 A.2d 412, 415 (Pa. Super. 2002).

 III.       Denial of Defendant's Motion for Judgment of Acquittal

        The Defendant argues that the Trial Court erred as a matter of law in denying the

Defendant's motion for judgment of acquittal. The denial of a motion for judgment of acquittal is

a sufficiency of evidence challenge. "A motion for judgment of acquittal challenges the

sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding the charge."

Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006).

        The sufficiency of the evidence issue in this case was previously addressed. In reviewing the

record in the light most favorable to the verdict winner, there   was sufficient evidence for the jury
to find the Defendant guilty.

    WHEREFORE, this Court respectfully requests that Defendant's appeal be denied.




                                                    8
