J-S08001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
TERRANCE WONGUS,                          :
                                          :
                  Appellant               : No. 2357 EDA 2013

            Appeal from the Judgment of Sentence July 10, 2013,
                Court of Common Pleas, Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0000177-2012,
           CP-51-CR-0011899-2011 and CP-51-CR-0014628-2011

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED FEBRUARY 27, 2015

      Terrance Wongus (“Wongus”) appeals from the judgment of sentence

entered on July 10, 2013 by the Court of Common Pleas of Philadelphia

County. For the reasons that follow, we affirm.

      This case stems from a string of robberies and thefts that occurred in

downtown Philadelphia from November 2010 through April 2011. Although

this case involves several different crimes and victims, the facts necessary to

resolve this appeal involve the robbery of only one of the victims, Daniel

Bayene (“Bayene”). Therefore, we summarize only the facts relevant to that

robbery.

      On April 16, 2011, Bayene was working as a parking lot attendant at

the EZ Park lot located at 1627 Pine Street in Philadelphia.     That evening

Bayene was carrying $300 of EZ Park’s money in his pocket and had $1,200
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in a safe in his parking attendant booth. At around 8:30 p.m. that evening,

a man approached Bayene’s booth holding a yellow and white striped

umbrella containing a “Smart Tax” logo along with the website address,

“TheSmartWayToFile.com.” Bayene exited the booth to greet the man when

that individual grabbed him around the waist, dragged, and then pushed him

into the parking booth.   Bayene noticed that his assailant was wearing a

black covering over the lower portion of his face. Bayene testified that he

believed his assailant was trying to commit a robbery and was going to hurt

him. The assailant then reached into his own pocket, at which point Bayene

grabbed his arm in order to prevent the assailant from removing his hand

from his pocket. After a five-minute struggle, the assailant fled the scene,

leaving behind the yellow and white striped umbrella.         Bayene then

proceeded to contact EZ Park management and the police.

     Bayene was unable to identify Wongus as his assailant from a photo

array. Bayene was also unable to identify Wongus at trial. However, Jessica

Brown (“Brown”), Wongus’ fiancée at the time of the robbery, told police

that the yellow and white striped umbrella belonged to her.          Brown

explained to police that Wongus had told her that he lost the umbrella

around the time Bayene’s robbery occurred.

     On May 26, 2011, police arrested Wongus in connection with the string

of robberies and thefts, including the robbery of Bayene. On May 3, 2013, a




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jury found Wongus guilty of two counts of robbery,1 and one count each of

possessing instruments of crime,2 theft by unlawful taking or disposition,3

and receiving stolen property.4 On July 10, 2013, the trial court sentenced

Wongus to twenty to forty years of incarceration.     On August 8, 2013,

Wongus filed a timely notice of appeal. On March 10, 2014, the trial court

ordered Wongus to file a concise statement of the errors complained of on

appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure.     On March 27, 2014, Wongus filed a timely Rule 1925(b)

statement.

       On appeal, Wongus raises the following issues for our review and

determination:

             1. Was the evidence regarding complaining witness
             [Bayene] insufficient to support Wongus’ conviction
             for [r]obbery?

             2. Should Wongus be awarded a new trial based on
             the Commonwealth’s impermissible references to
             [his] past criminal conduct?

Wongus’ Brief at 4.

       We begin with Wongus’ challenge to the sufficiency of the evidence

relating to Bayene’s robbery. In reviewing a challenge to the sufficiency of


1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
    18 Pa.C.S.A. § 907(a).
3
    18 Pa.C.S.A. § 3921(a).
4
    18 Pa.C.S.A. § 3925(a).


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the evidence, our Supreme Court has provided the following scope and

standard of review:

            In evaluating the issue, we must determine whether
            the evidence admitted at trial and all reasonable
            inferences derived therefrom, viewed in the light
            most favorable to the Commonwealth as the verdict
            winner, supports the jury’s finding that every
            element of the offense was proven beyond a
            reasonable doubt. Commonwealth v. Smith, []
            985 A.2d 886, 894–895 ([Pa.] 2009). The
            Commonwealth may sustain its burden of proof by
            means of wholly circumstantial evidence, and the
            jury, which passes upon the weight and credibility of
            each witness’s testimony, is free to believe all, part,
            or none of the evidence. Commonwealth v. Laird,
            [] 988 A.2d 618, 624 ([Pa.] 2010).

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011).

      Wongus’ challenge to the sufficiency of the evidence is two-fold. First,

Wongus argues that there is no evidence that he was the individual that

Bayene encountered on the night in question. Id. at 12. In support of his

argument, Wongus relies on the fact that Bayene was unable to identify him

and Brown’s testimony at trial that she was mistaken when she originally

told the police that the yellow and white striped umbrella belonged to her.

Id.

      We conclude that the evidence was sufficient, when viewed in the light

most favorable to the Commonwealth as the verdict winner, to prove that

Wongus was the individual who robbed Bayene. Bayene testified that on the

night in question, a man approached his booth with a yellow and white




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striped umbrella, containing a “Smart Tax” logo and the website address,

“TheSmartWayToFile.com.”     N.T., 4/25/13, at 75-76, 86.   After a physical

struggle with Bayene, the assailant fled the scene, leaving the umbrella

behind. Id. at 82-83. Brown, Wongus’ ex-fiancée, admitted at trial that she

originally told police that this umbrella belonged to her and that Wongus had

told her he lost it around the time of this robbery. N.T., 4/26/13, at 93-96.

Brown also testified, however, that she was mistaken when she told police

that the umbrella belonged to her because she had recently found her

umbrella. Id. at 104.

     Based on the verdict in this case, the jury clearly chose to believe the

evidence indicating that Brown had originally told police that the yellow and

white striped umbrella was hers and that Wongus had told her he had lost it.

Similarly, the jury found not credible Brown’s testimony that the umbrella

recovered from Bayene’s robbery was not hers and the she had recently

found her umbrella. As our standard of review indicates, the jury is free to

believe all, part, or none of the evidence. See Ramtahal, 33 A.3d at 607.

It is not for an appellate court “to reweigh the evidence and substitute its

judgment for that of the fact-finder.”    Commonwealth v. Hanible, 836

A.2d 36, 39 (Pa. 2003). Therefore, viewing the evidence in the light most

favorable to the Commonwealth as the verdict winner, the Commonwealth

produced evidence that Wongus was in possession of the yellow and white

striped umbrella found at Bayene’s crime scene around the time of Bayene’s



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robbery.   The Commonwealth presented evidence that this umbrella

belonged to Brown, Wongus’ ex-fiancée. The Commonwealth also presented

evidence that Wongus had told Brown that he had lost the umbrella around

the time of Bayene’s robbery.   Accordingly, the evidence was sufficient to

identify Wongus as the perpetrator of the robbery.

     Second, Wongus argues that the Commonwealth failed to prove the

elements of section 3701(a)(1)(ii) of the robbery statute because there was

no evidence that a theft occurred, that Wongus threatened Bayene, or that

Wongus placed Bayene in fear of serious bodily injury. Wongus’ Brief at 13.

Wongus asserts that there is no evidence that a theft occurred because the

Commonwealth provided no testimony that he tried to take anything from

Bayene or that he demanded anything from him. Id. Wongus also contends

that there is no evidence that he placed Bayene in fear of serious bodily

injury because the Commonwealth provided no evidence that he verbally

threatened Bayene or that he brandished any weapons in front of him. Id.

     The robbery statute reads, in pertinent part, as follows:

           (a) Offense defined.--

                 (1) A person is guilty of robbery if, in the
                 course of committing a theft, he:

                                  *         *   *

                       (ii)   threatens   another     with       or
                       intentionally puts him in fear            of
                       immediate serious bodily injury[.]




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18 Pa.C.S.A. § 3701(a)(1)(ii).

      Section 3701(a)(2) provides that “[a]n act shall be deemed ‘in the

course of committing a theft” if it occurs in an attempt to commit theft or in

flight after the attempt or commission.        18 Pa.C.S.A. § 3701(a)(2).

Additionally, the law of this Commonwealth defines serious bodily injury as

“bodily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement or protracted loss or impairment of the

function of any bodily member or organ.” Commonwealth v. Kubis, 978

A.2d 391, 398 (Pa. Super. 2009) (quoting Commonwealth v. Hopkins,

747 A.2d 910, 915 (Pa. Super. 2000)). This Court has explained:

            “[T]he Commonwealth need not prove a verbal
            utterance or threat to sustain a conviction under
            subsection 3701(a)(1)(ii).”     Commonwealth v.
            Alford, 880 A.2d 666, 676 (Pa. Super. 2005),
            appeal denied, [] 890 A.2d 1055 ([Pa.] 2005)
            (quoting Commonwealth v. Hopkins, 747 A.2d
            910, 914 (Pa. Super. 2000)). “It is sufficient if the
            evidence demonstrates aggressive actions that
            threatened the victim’s safety. For the purposes of
            subsection 3701(a)(1)(ii), the proper focus is on the
            nature of the threat posed by an assailant and
            whether he reasonably placed a victim in fear of
            immediate serious bodily injury.”     Alford, supra
            (quoting Hopkins, supra).

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

      Our review of the record reflects sufficient evidence to establish each

of the elements of section 3701(a)(1)(ii). Bayene stated that on the night in

question, he was working as an EZ Park lot attendant with $300 in his




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pocket and another $1,200 in a safe in his booth. N.T., 4/25/13, at 71-73.

Bayene testified that a man approached his booth, grabbed him around the

waist, and then dragged and pushed him into the booth. Id. at 79. Bayene

stated that he could not see most of his assailant’s face because the

assailant was wearing a mask covering the lower portion of face.        Id.

Bayene testified that when the assailant proceeded to stick his hand in his

own pocket, Bayene held onto the assailant’s arm so that he could not take

his hand out of his pocket. Id. at 79-80. Bayene stated that entire struggle

lasted about five-minutes, after which Wongus fled the scene. Id. at 82-83.

      The fact that Wongus attacked Bayene, while wearing a mask, by

dragging him and pushing him into his parking attendant’s booth, wherein

there was a substantial sum of money from customers paying to park in the

lot, supports the inference that Wongus attacked Bayene in order to take

that money.    Thus, the Commonwealth proved that Wongus was in the

course of committing a theft.      See 18 Pa.C.S.A. § 3701(a)(1), (2).

Additionally, we find that Wongus engaged in sufficiently aggressive actions

that threatened Bayene’s safety, supporting the notion that Wongus placed

Bayene in fear of immediate serious bodily injury.” See Hansley, 24 A.3d

at 416.   Wongus while wearing a mask, grabbed, dragged, and pushed

Bayene into his booth and a five-minute long struggle ensued. Accordingly,

we conclude that the evidence was sufficient to sustain Wongus’ robbery

conviction.



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       For his second issue on appeal, Wongus argues that he should receive

a new trial because two witnesses for the Commonwealth impermissibly

referenced his prior criminal conduct.                Wongus’ Brief at 14-18.         First,

Wongus claims that the trial court should have sustained his objection to

Scott Copeland’s (“Copeland”)5 testimony that the police matched a

fingerprint from a crime scene to Wongus’ fingerprints through use of the

Automated Fingerprint Identification System (“AFIS”).                   Id. at 15-16.

Wongus contends that this testimony led to the inference that he was

involved in prior criminal activity because his fingerprints were on file with

the police. Id. Wongus asserts that this predisposed the jury to find him

guilty in this case. Id.

       We recognize that “[t]he admissibility of evidence is a matter directed

to the sound discretion of the trial court, and an appellate court may reverse

only   upon    a   showing      that    the   trial   court   abused   that    discretion.”

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014).               “Not merely an error in judgment, an

abuse of discretion occurs when ‘the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice,    bias,   or   ill-will,   as   shown     by   the   evidence     on   record.’”




5
   Copeland is a Fingerprint Identification Technician with the Philadelphia
Police Department. N.T., 4/24/13, at 121.


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Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009) (quoting

Commonwealth v. McAleer, 748 A.2d 670 (Pa. 2000)).

      We conclude that Wongus’ claim is meritless. Copeland did testify that

the Philadelphia Police Department ran a fingerprint from one of the crime

scenes through the AFIS, which returned a match for Wongus.               N.T.,

4/24/13, at 127-28.    However, when describing the AFIS, Copeland only

stated that it is “a database of known fingerprints.”    Id.   Nowhere in his

testimony does Copeland ever state, or even imply, that the AFIS is a

database of fingerprints of known or convicted criminals or those who have

previously been involved in criminal activity.          See id. at 127-40.

Accordingly, we cannot conclude that the trial court abused its discretion in

overruling Wongus’ objection.

      Second, Wongus asserts that the trial court erred in failing to grant his

request for a mistrial following Detective Louis Velazquez’s (“Detective

Velazquez”) testimony that the police developed Wongus as a suspect in this

case because of his “prior contacts” with police.     Id. at 16-18.   Wongus

contends that these remarks likewise made the jury aware that he was

involved in prior criminal activity and therefore predisposed the jury to find

him guilty. Id. at 17-18.

      We conclude that Wongus has waived this claim. Rule 605(b) of the

Pennsylvania Rules of Criminal Procedure provides that “[w]hen an event

prejudicial to the defendant occurs during trial only the defendant may move



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for a mistrial; the motion shall be made when the event is disclosed.

Otherwise, the trial judge may declare a mistrial only for reasons of manifest

necessity.” Pa.R.Crim.P. 605(b). Our Court has explained that “in order for

a motion for a mistrial to be timely, it must be made when the alleged

prejudicial event occurs.” Commonwealth v. Boring, 684 A.2d 561, 568

(Pa. Super. 1996).6       Here, Detective Velazquez’s prejudicial testimony

occurred during trial on April 25, 2013. N.T., 4/25/13, at 215-16. The trial

court immediately offered a curative instruction.   Id. at 216. Wongus did

not request a mistrial until the following morning.   N.T., 4/26/13, at 3-4.

Accordingly, because Wongus did not request a mistrial at the appropriate

time, he has waived the issue on appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2015




6
   Boring implicated Rule 1118(b) of the Pennsylvania Rules of Criminal
Procedure. Rule 1118 was renumbered to Rule 605, effective April 1, 2001.
See Pa.R.Crim.P. 605(b).


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