J-S57013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAKEEM WILLIAMS

                            Appellant                No. 2730 EDA 2014


            Appeal from the Judgment of Sentence August 29, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009810-2013


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 12, 2016

        Appellant, Jakeem Williams, appeals from the August 29, 2014

aggregate judgment of sentence of three to six years’ incarceration, followed

by two years’ probation, after a jury found him guilty of conspiracy to

commit robbery.1 After careful review, we affirm.

        The trial court has set forth the relevant factual history in extensive

detail in its opinion filed pursuant to Pennsylvania Rule of Appellate

Procedure 1925, as follows.

              1. Testimony of Mohammed Hilo

                    Mohammed Hilo is the owner of Destiny’s
              Supermarket, located at 4927 Broad Street in
              Philadelphia. On April 29, 2013, Hilo was working
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1
    18 Pa.C.S.A. §903(c).
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          with his brother and an employee Tymir Brown. At
          3:45pm, [Appellant] and co-Defendant Marcus
          Williams (herein, “Marcus”) entered the store
          together.

                 Upon entering the store, Marcus and
          [Appellant] split up and went to different parts of the
          store. Marcus went to the front of the store where
          Hilo was working at the cash register and asked him,
          “Where is the milk?” Hilo told Marcus that the milk
          was toward the back. Marcus then headed to the
          refrigerator case where the milk was kept.           In
          contrast, after [Appellant] entered the store, he went
          all the way straight to the back and stood by the
          back door.      Marcus then came back up to the
          counter, put the milk back on the counter and put
          his bookbag on the counter and then he put a gun
          between the milk and the bookbag and told Hilo,
          “Give me all of the money in the register.” Marcus
          pointed the gun toward Hilo’s stomach from about 3
          feet away. In response, Hilo removed approximately
          $200 from the register and gave it to Marcus. As
          Hilo was removing the money from the register,
          Marcus told him to hurry and to quit stalling. After
          he gave Marcus the money, Marcus then asked Hilo
          where the safe was and to give him the money in the
          safe. Hilo told Marcus that there was no safe in the
          store. Marcus then told Hilo to get on the floor and
          yelled, “Let’s go” to [Appellant], who had remained
          in the back of the store. Marcus and [Appellant]
          immediately left the store together.

                Police officers arrived a few minutes after the
          robbery and took Hilo and Brown in a police vehicle
          to survey the neighborhood for [Appellant] and
          Marcus. Hilo and Brown did not identify anyone
          during the survey. On the way to the police station,
          police officers took Hilo and Brown to a Shop-n-Bag
          store. One of the officers went inside the Shop-n-
          Bag while Hilo and Brown waited inside the police
          vehicle. As they waited inside the vehicle, Brown
          was talking on the phone with his mother and telling
          her that he wanted to leave the police vehicle and
          just wanted to go home. When they arrived at the

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          police district, Hilo gave a statement to the
          detectives; Brown left the district without giving a
          statement.

                 After Hilo gave his statement, he then went in
          a police vehicle to a location to attempt to identify
          the individuals who robbed his store. At the first
          location, Hilo identified a person who was in the
          store about 15 minutes prior to the robbery. At the
          second location, Hilo identified [Appellant] as the
          person who went straight to the back of the store.
          When he identified [Appellant], Hilo noted that
          [Appellant] was wearing a different shirt but had the
          same height, frame and beard as the person who
          stood at the back of the store during the robbery.
          Hilo was not 100 percent certain that the face
          matched because he did not see the person face-to-
          face. After making this identification, Hilo went back
          to the police district and gave a second statement.

                 During the trial, Hilo identified Marcus as the
          person who pointed the gun at him. Hilo testified
          that, on the day of the robbery, Marcus (1) was a
          little shorter than 5’7”, (2) was wearing an orange
          and black hat, (3) had a light beard, and (4) had a
          big nose and eyes that were not all the way opened.
          On the day of the robbery, Hilo observed Marcus’s
          face from about three feet away in his store. A few
          months after the robbery, Hilo identified Marcus from
          a photo array as the person who pointed the gun at
          him. Hilo also identified Marcus at a preliminary
          hearing and at the line-up facility as the person who
          pointed the gun at him.

                During the trial, Hilo identified [Appellant] as
          the person who went straight to the back of the store
          and waited until Marcus shouted at him, “Let’s go.”
          Hilo testified that, on the day of the robbery,
          [Appellant] (1) had a light beard, (2) was taller and
          skinnier than Marcus, (3) was wearing black jeans
          and a hoodie sweatshirt with a stripe on it, and (4)
          had the hoodie over his head.

          2. Testimony Of Tymir Brown

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                Tymir Brown was working at the deli counter at
          the rear of the supermarket when he observed
          [Appellant] near the frozen food section of the store.
          After the store was robbed, police detectives arrived
          and began to view surveillance video of the robbery.
          As the detectives were viewing the video, Brown told
          them that he knew one of the guys on the camera
          and that the person worked at the local Shop-n-Bag.
          After making this statement to the police, Brown was
          taken to the police station so he could give a formal
          statement. Brown left the police station without
          giving a formal statement because he had an open
          bench warrant. Brown ultimately gave a statement
          to detectives wherein he said that he recognized the
          person who went to rear of the store.

                 At trial, Brown testified that he did not observe
          [Appellant] enter the store or with whom [Appellant]
          left the store, if anyone. Rather, he testified that
          [Appellant] was just standing near the frozen food
          section. In his statement to detectives, however,
          Brown said that two guys came into the store and
          that one guy stayed at the front counter with Hilo
          and the other guy went to the back of the store near
          the frozen food section. The guy in the rear of the
          store wore a tan hoodie, and the guy at the front
          counter had on a black hoodie, a black jacket, and a
          black cap with an orange rim. A short time later,
          Brown heard the guy at the front of the store say,
          “Come on,” and the guy in the rear of the store ran
          to the front of the store and out the front door.
          Brown testified at trial that everything he told the
          detective in his statement was true.

               At trial, Brown identified [Appellant] as the
          person who entered the store and immediately went
          to the rear of the store.      Brown did not hear
          [Appellant] say anything to anyone, including
          Marcus, while he was inside the store.

               When the assistant district attorney asked
          Brown if he was ready to testify at the trial, he
          responded that he was scared, “didn’t want to be


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          involved,” and didn’t “want anyone coming after my
          mom.”

          3. Testimony Of Police Officer David Burns

                 Philadelphia  Police   Officer  David      Burns
          responded to a report of a robbery at the
          supermarket. When he arrived, he interviewed Hilo,
          who provided him the following descriptions. The
          first male was brown skin, about 5’7” tall, in his early
          20’s and wearing a black and orange hat, black
          jacket, gray hoodie and blue jeans. The second male
          was unshaved and wearing blue jeans, tan
          Timberlands and a tan hoodie.

                Officer Burns also testified that Brown told him
          that he recognized the person wearing the tan
          hoodie as working at the Shop-n-[B]ag store at
          Broad and Wingohocking Streets. Based upon the
          information provided by Brown, Officer Burns visited
          the Shop-n-[B]ag store, provided the store manager
          with a description of [Appellant], and asked the
          manager to get in contact with [Appellant]. Officer
          Burns did not inform the manager or anyone else at
          the Shop-n-[B]ag why he wanted to get in contact
          with [Appellant]. A short time later, Officer Burns
          received a call from [Appellant], who stated that he
          heard that the officer was looking for him in
          reference to a robbery.

                [Appellant] agreed to meet with Officer Burns
          at 8th and Fisher Streets. Officer Burns observed
          that [Appellant] had the same physical build, the
          same blue jeans, and the same Timberlands as the
          person who wore the tan hoodie in the video, but
          that - instead of wearing a tan hoodie - [Appellant]
          had on a red and blue Puma hoodie or jacket. A
          short while later, another officer brought Hilo to 8th
          and Fisher Streets to see if Hilo could identify
          [Appellant] as being involved in the robbery. After
          observing [Appellant], Hilo indicated that he had the
          same physical description, same build and height,
          but he wasn’t 100% sure of his face.


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           4. Video And Photographs Of Robbery

                 At trial, the assistant district attorney
           introduced into evidence several videos that were
           recovered from cameras inside and outside the
           supermarket. The videos corroborated the testimony
           of Hilo and Brown in several important aspects,
           including that [Appellant] and Marcus entered the
           store together, that [Appellant] and Marcus left the
           store together, and that [Appellant] ran after Marcus
           once he was outside of the store. The video also
           shows [Appellant] adjusting his hoodie and putting it
           completely over his head just before entering the
           store. The video further shows that – in the two
           minutes that [Appellant] is positioned in the rear of
           the store – he does not pick up any items for
           inspection but rather paces back and forth until
           Marcus yells to him either “come on” or “let’s go.”
           Additionally, photographs admitted into evidence
           confirm that [Appellant] did not have his hoodie up
           when he was walking with Marcus a few blocks from
           the store prior to the robbery.

Trial Court Opinion, 1/15/15, at 1-6 (internal citations and some quotation

marks omitted).

     Appellant was arrested on April 29, 2013 and charged with multiple

counts stemming from the robbery.      A five-day jury trial commenced on

June 23, 2014, at the conclusion of which, on June 27, 2014, Appellant was

found guilty of criminal conspiracy.   On August 29, 2014, Appellant was

sentenced to three to six years’ imprisonment, followed by two years’

probation. Appellant did not file a post-sentence motion.

     On September 22, 2014, Appellant filed a timely notice of appeal.

Thereafter, on October 17, 2014, the trial court ordered Appellant to file a

Rule 1925(b) statement within 21 days from the entry of the order or after

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the notes of testimony become available.           Appellant did not file his Rule

1925(b) statement until December 30, 2014.                Ordinarily, the failure to

timely file a court-ordered 1925(b) statement results in a waiver of all issues

on appeal.     See Pa.R.A.P. 1925(b)(4)(vii);        Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011) (explaining Rule 1925(b) is a bright-line rule).

However, “[t]he complete failure to file the [Rule] 1925 concise statement is

per se ineffectiveness because it is without reasonable basis designed to

effectuate    the    client’s   interest   and   waives   all   issues   on   appeal.”

Commonwealth v. Thompson, 39 A.3d 335, 339 (Pa. Super. 2012)

quoting Commonwealth v. Burton, 973 A.2d 428, 432 (Pa. Super. 2009) (en

banc);.   Instantly, it appears the notes of testimony were generated on or

about December 2, 2014,2 Appellant’s Rule 1925(b) statement was filed on

December 30, 2014, and the trial court opinion was filed on January 15,

2015 in response to Appellant’s statement. While not clear from the record

whether Appellant’s statement was timely filed, we need not remand for

supplemental filings in this matter, as Appellant’s statement was ultimately

filed and addressed by the trial court, and because if untimely, Appellant’s

Rule 1925(b) statement would be curable through Rule 1925(c)(3).

____________________________________________


2
  Curiously the transcripts were not filed until January 15, 2015, the date
upon which the trial court filed its opinion. Nevertheless, as we cannot
ascertain the exact date the notes of testimony became available to
Appellant, we cannot determine whether Appellant’s Rule 1925(b) statement
was filed within 21 days of his receipt of them.



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Therefore, we decline to find waiver, and we may address the merits of

Appellant’s claim.

      On appeal, Appellant raises the following issue for our review.

                  Was not the evidence insufficient to prove
            [A]ppellant guilty of conspiracy to commit robbery
            where the Commonwealth failed to establish two
            essential elements of conspiracy, namely, that
            [A]ppellant intended to facilitate or promote the
            commission of the robbery, and that [A]ppellant was
            a party to an agreement to commit the robbery?

Appellant’s Brief at 3.

      We begin by noting our well-settled standard of review. “In reviewing

the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, viewed in a light

most favorable to the Commonwealth as the verdict winner, support the

jury’s verdict beyond a reasonable doubt.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied, Patterson v.

Pennsylvania, 135 S. Ct. 1400 (2015). “The Commonwealth can meet its

burden by wholly circumstantial evidence and any doubt about the

defendant’s guilt is to be resolved by the fact finder unless the evidence is so

weak and inconclusive that, as a matter of law, no probability of fact can be

drawn from the combined circumstances.” Commonwealth v. Watley, 81

A.3d 108, 113 (Pa. Super. 2013) (en banc) (internal quotation marks and

citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate

court, we must review “the entire record … and all evidence actually


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received[.]”     Id. (internal quotation marks and citation omitted).    “[T]he

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.”

Id. (citation omitted). “Because evidentiary sufficiency is a question of law,

our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      In this case, Appellant was convicted of criminal conspiracy, which is

defined as follows.

               § 903. Criminal conspiracy

               (a) Definition of conspiracy.--A person is guilty of
               conspiracy with another person or persons to commit
               a crime if with the intent of promoting or facilitating
               its commission he:

                     (1) agrees with such other person or persons
                     that they or one or more of them will engage
                     in conduct which constitutes such crime or an
                     attempt or solicitation to commit such crime;
                     or

                     (2) agrees to aid such other person or persons
                     in the planning or commission of such crime or
                     of an attempt or solicitation to commit such
                     crime.

18 Pa.C.S.A. § 903(a).

      Instantly, Appellant argues “the Commonwealth failed to prove beyond

a reasonable doubt two essential elements of conspiracy: that [A]ppellant

had the criminal intent to promote or facilitate the robbery, and; that


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[A]ppellant entered into an agreement to commit the robbery.” Appellant’s

Brief at 13. Appellant asserts “[t]he evidence showed only that [A]ppellant

walked into the store with Marcus and left shortly after he did.”             Id.

(footnote omitted).

         “[A] conviction for conspiracy requires proof of the existence of a

shared criminal intent.” Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa.

Super.     2013),   appeal   denied,   83   A.3d    414   (Pa.   2014),   quoting

Commonwealth v. Swerdlow, 636 A.2d 1173, 1176-1177 (Pa. Super.

1994). Further, the proof of an agreement to commit crimes almost always

relies on circumstantial evidence because there is rarely a formal agreement

between conspirators. Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa.

Super. 2014) (en banc). Accordingly, a conspiracy may be inferred from the

conduct of the parties, taking into account the following factors: “(1) an

association between alleged conspirators, (2) knowledge of the commission

of the crime, (3) presence at the scene of the crime, and (4) participation in

the object of the conspiracy.” Id. (citation omitted). Still, a person can be

convicted of conspiracy even if that person does not participate in the

commission of the underlying crime.             McCoy, supra at 665 (citation

omitted).

      Here, the trial court found as follows.

             [Appellant] pulled up his hoodie over his head prior
             to entering the store. [Appellant] entered the store
             with Marcus, [Appellant] stood by the back door
             pacing back and forth for two minutes and inspected

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            no food items for purchase while Marcus robbed Hilo,
            [Appellant] ran to the front of the store after Marcus
            shouted “come on” or “let’s go,” [Appellant] and
            Marcus left the store together, and [Appellant] ran
            after Marcus once he was outside of the store. In
            other words, [Appellant]’s relationship with Marcus,
            his presence at the scene of the crime, his conduct
            before and after the robbery, his change of clothing
            after the robbery, and his flight from the scene are
            sufficient evidence from which to infer each of the
            elements of conspiracy beyond a reasonable doubt,
            i.e., he agreed with Marcus to rob the store and
            [Appellant] acted as the lookout while Marcus
            committed the robbery.

Trial Court Opinion, 1/15/15, at 7 (footnotes omitted).

      Upon careful review of the record and transcripts in this matter, we

agree that, based on the totality of the evidence viewed in the light most

favorable to the Commonwealth, there was sufficient evidence to convict

Appellant of conspiracy. As noted, Appellant and Marcus entered the store

together, Marcus went to the counter to confront Hilo, Appellant headed to

the back of the store.    N.T., 6/24/14, at 62.   When Marcus shouted “let’s

go,” Appellant ran from the back of the store and left with Marcus. Id. at

68. Appellant was identified by both Hilo and Brown as the person they saw

enter the store, head to the rear, and follow Marcus out after the robbery.

Id. at 62, 68, 172-173. Appellant does not dispute the trial court’s factual

findings recounted above, rather he draws from those findings a conclusion

that the evidence does not prove a shared criminal intent or agreement to

commit the robbery. However, based on the testimony of two eyewitnesses

and   the   video   and   photographic   evidence   admitted   at    trial,   the

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circumstantial evidence was sufficient to prove those elements and convict

Appellant of conspiracy. See Kinard, supra.

         Based on the foregoing, we conclude Appellant’s sole issue on appeal

fails.   Therefore, we affirm the trial court’s August 29, 2014 judgment of

sentence.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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