J-S19043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    DARRELL JOHNSON                            :
                                               :
                       Appellant               :      No. 2721 EDA 2017


              Appeal from the Judgment of Sentence July 19, 2017
              in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0007273-2016


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED MAY 21, 2018

       Appellant, Darrell Johnson, appeals from the judgment of sentence

imposed following his jury conviction of two counts each of robbery and

aggravated assault, and one count each of criminal conspiracy, person not to

possess a firearm, and firearms not to be carried without a license.1       We

affirm.

       We take the relevant facts and procedural history of this case from our

independent review of the certified record.        On August 20, 2016, at about

10:30 p.m., the victim, Anthony Gibbons, went to a bar with Appellant’s cousin

and accomplice in this crime, Latia Lofton. While they were at the bar, Lofton

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1 18 Pa.C.S.A. §§ 3701, 2702, 903, 6105 and 6106, respectively. Appellant
was ineligible to possess a firearm because of a prior robbery conviction, and
did not own a valid license to conceal or carry a firearm. (See N.T.
Sentencing, 7/19/17, at 4-5, 18; N.T. Trial, 3/23/17, at 98).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19043-18



went in and out of the restroom multiple times, and used her cellphone to

send text messages and make a phone call. When Gibbons and Lofton went

outside to smoke a cigarette at Lofton’s request, Appellant approached them

with his face covered. Appellant was carrying a gun, and he snatched Lofton’s

pocketbook.      Appellant put the gun to Gibbons’ head and demanded his

cellphone, keys and money.2 Gibbons complied, and then pulled his own gun

from his car. Both men started shooting, and Gibbons was struck in his foot

and back. The bar owner called 911, and police and an ambulance responded

to the scene.

       Police recovered Lofton’s cellphone, and downloaded and reviewed text

messages from the night of the robbery indicating that she and Appellant

planned the robbery together. One of the text messages read: “You gone

[sic] see us out front. We in parking lot. Take my purse too.” (N.T. Trial,

3/22/17, at 77, 87). Lofton eventually gave a statement to police confirming

her involvement in the robbery.3 Cell site analysis performed on Appellant’s

cellphone placed him in the general vicinity of the bar on the night of the

incident. Police recovered a handgun from Appellant’s home during a search



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2 Relevant to this appeal, Gibbons testified that he had “a couple hundred”
dollars on him, but not as much as $900.00. (N.T. Trial, 3/22/17, at 54-55).
Lofton testified that, after the robbery, Appellant gave her $300.00, and told
her that he took $900.00 from Gibbons. (See id. at 95-96).

3 She entered an open guilty plea to the charges brought against her in this
case. (See N.T. Trial, 3/22/17, at 92).

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of his residence. The gun matched the firearm used in the robbery, and DNA

testing showed Appellant’s DNA on the gun, along with two other contributors.

       Appellant proceeded to a jury trial on March 22, 2017. At the conclusion

of the Commonwealth’s case, defense counsel moved to dismiss the firearms

not to be carried without a license charge, arguing that the Commonwealth

failed to establish certain elements of the crime. The trial court denied the

motion. The jury found Appellant guilty of the above-listed offenses on March

24, 2017.      On July 19, 2017, the trial court sentenced Appellant to an

aggregate term of not less than twenty-five nor more than fifty years’

incarceration.

       Appellant, acting pro se, filed post-sentence motions dated July 25,

2017 and docketed on August 2, 2017, which the trial court accepted as timely

under the prisoner mailbox rule.4 On August 8, 2017, the trial court entered

an order denying the post-sentence motions and advising Appellant of his right
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4This rule provides that a pro se prisoner’s document is deemed filed on the
date he delivers it to prison authorities for mailing, i.e., in this case, July 25,
2017. See Commonwealth v. Jordan, 2018 WL 1476241, at *1 n.3 (Pa.
Super. filed Mar. 27, 2018).

      We note that, at the time Appellant filed his pro se post-sentence
motions, his privately-retained trial counsel had not yet withdrawn his
appearance. While hybrid representation is generally not permitted, our
Supreme Court has held that a pro se notice of appeal from a judgment of
sentence filed by a represented appellant is not automatically void. See
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) (validating pro se
notice of appeal filed by counseled criminal defendant). Accordingly, in the
interest of judicial economy, we will treat Appellant’s post-sentence motions
as timely, as the trial court did. (See Trial Court Opinion, 12/18/17, at 2).



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to appeal. Appellant filed a timely counseled notice of appeal on August 25,

2017.     He timely complied with the trial court’s order to file a concise

statement of errors complained of on appeal, and the court entered an opinion

on December 18, 2017. See Pa.R.A.P. 1925.

        Appellant raises three questions for our review:

        1. Whether the trial court erred in denying Appellant’s challenge
        to the weight of the evidence[?]

        2. Whether the trial court erred in denying defense counsel’s
        request for a corrupt and polluted source charge in the final charge
        to the jury[?5]

        3. Whether the trial court erred in failing to grant Appellant’s
        motion to dismiss the firearms charge at the end of the
        Commonwealth’s case[?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).

        Appellant first challenges the weight of the evidence supporting his

conviction, claiming that Latia Lofton’s testimony regarding the robbery was

not credible or believable.6       (See Appellant’s Brief, at 16-25).   Appellant’s

argument focuses primarily on the discrepancy between the testimony of

Lofton and Gibbons regarding the amount of money involved in the incident,


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5 “[T]he standard charge for accomplice testimony [is] commonly referred to
as the corrupt and polluted source charge.” Commonwealth v. Lawrence,
165 A.3d 34, 44 (Pa. Super. 2017) (citation and footnote omitted). In this
case, the trial court issued such instruction immediately prior to Latia Lofton’s
testimony. (See N.T. Trial, 3/22/17, at 78-80).

6Appellant preserved his weight claim by raising it in his post-sentence
motion. See Pa.R.Crim.P. 607(A)(3).


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which Appellant claims raises reasonable doubt as to whether a robbery

occurred. (See id. at 16-17, 20-22, 25; see also supra at *2 n.2). Appellant

asserts that “if [Gibbons] had a couple hundred dollars on him and Lofton

claimed [Appellant] took [$]900.00 from [Gibbons] and gave [$]300.00 to

Lofton, no robbery took place.” (Appellant’s Brief, at 25; see id. at 16, 22).

This issue does not merit relief.

            At the outset, we note that the weight attributed to the
      evidence is a matter exclusively for the fact finder, who is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses. The grant of a new trial is not
      warranted because of a mere conflict in the testimony and must
      have a stronger foundation than a reassessment of the credibility
      of witnesses. Rather, the role of the trial judge is to determine
      that, notwithstanding all of the facts, certain facts are so clearly
      of greater weight, that to ignore them or to give them equal
      weight with all of the facts is to deny justice.

            An appellate court’s purview:

            is extremely limited and is confined to whether the
            trial court abused its discretion in finding that the jury
            verdict did not shock its conscience. Thus, appellate
            review of a weight claim consists of a review of the
            trial court’s exercise of discretion, not a review of the
            underlying question of whether the verdict is against
            the weight of the evidence.

             An appellate court may not reverse a verdict unless it is so
      contrary to the evidence as to shock one’s sense of justice. [T]he
      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. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal

denied, 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).




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          Here, the trial court determined that the testimony of Lofton and

Gibbons, when viewed as a whole, was complimentary, and that the difference

regarding the amount of money taken was a minor discrepancy. (See Trial

Ct. Op., at 6-7). Upon review of the record, we agree. As the trial court

points out, the jury, as factfinder, heard each of the witnesses’ testimony

concerning the amount of money involved in the robbery and was free to

resolve any conflict. Therefore, we conclude that the trial court did not abuse

its discretion in finding that the jury’s verdict did not shock its conscience.

See Hicks, supra at 223.7 Appellant’s first issue lacks merit.

          Appellant next challenges the trial court’s denial of his request that it

repeat, during its final charge to the jury, the corrupt and polluted source

instruction that it had already issued immediately before Latia Lofton’s

testimony.      (See Appellant’s Brief, at 26-29; see also supra at *4 n.5).

Appellant acknowledges that the court gave this instruction before Lofton’s

testimony, but contends that it was necessary for the court to restate it in its

final charge. (See Appellant’s Brief, at 26-27, 29). This issue does not merit

relief.

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7 In his weight claim, Appellant also briefly challenges the DNA evidence
relating to the gun at issue in this case, arguing that although his DNA was on
the gun, police should have analyzed the two other contributing DNA samples
as potential perpetrators. (See Appellant’s Brief, at 16, 23). However, this
argument discounts the fact that the gun was found in his home shortly after
the robbery, under a mattress. (See N.T. Trial, 3/23/17, at 27, 127).
Furthermore, the jury heard testimony explaining that there were two other
contributing DNA samples on the gun, and was free to weigh this evidence.
(See id. at 77, 81); see also Hicks, supra at 223.

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            When reviewing jury instructions, we are governed by the
      following standard:

                   Our standard of review in assessing a trial
             court’s jury instructions is as follows:

                   [W]hen evaluating the propriety of jury
             instructions, this Court will look to the instructions as
             a whole, and not simply isolated portions, to
             determine if the instructions were improper. . . . Only
             where there is an abuse of discretion or an inaccurate
             statement of the law is there reversible error.

Commonwealth v. Patterson, 2018 WL 771822, at *5 (Pa. Super. filed Feb.

8, 2018) (citations omitted).

      The Pennsylvania Rules of Criminal Procedure provide trial courts with

the authority to give instructions to the jury “before the taking of evidence or

at anytime during the trial as the judge deems necessary and appropriate for

the jury’s guidance in hearing the case.” Pa.R.Crim.P. 647(E). Regarding the

propriety of issuing a corrupt and polluted source instruction, this Court has

explained:

             . . . [I]n any case where an accomplice implicates the
      defendant, the judge should tell the jury that the accomplice is a
      corrupt and polluted source whose testimony should be viewed
      with great caution. . . .

            The ‘corrupt source’ charge in particular is designed
      specifically to address situations where one accomplice testifies
      against the other to obtain favorable treatment. It directs the jury
      to view the testimony of an accomplice with disfavor and accept it
      only with care and caution.

Lawrence, supra at 44-45 (citations and most quotation marks omitted).

      Here, as noted, the record reflects that the trial court did issue a

thorough and comprehensive corrupt and polluted source instruction,


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spanning more than two pages of the trial transcript, immediately before

Lofton’s testimony.    (See N.T. Trial, 3/22/17, at 78-80).       When defense

counsel requested that the court repeat the instruction as part of its final

charge, it declined to do so, stating: “I’m going to tell the jury again, as I’ve

told them previously, the instructions are considered as a connected series

and I’ll remind them of the things I said earlier.” (N.T. Trial, 3/23/17, at 102).

At the beginning of its final charge, the court explained this continuum in

instructions to the jury; stated that it would be happy to repeat any previously

issued instruction; and directed that all of its instructions, taken together,

constitute the law the jury must follow. (See N.T. Trial, 3/24/17, at 43). The

court then issued a general charge regarding witness credibility, instructing

the jury to consider whether the witnesses had any bias or motive to testify

falsely, or any interest in the outcome of the case. (See id. at 43-45).

      Upon review, we discern no abuse of discretion or error of law in the

trial court’s decision to decline to issue a second corrupt and polluted source

jury instruction.   See Patterson, supra at *5.           The court issued the

instruction when it deemed necessary and appropriate, and reminded the jury

in the final charge of its obligation to follow all instructions. See Pa.R.Crim.P.

647(E). In his brief, Appellant concedes that he could find no case law to

support his argument that the trial court was required to repeat an instruction

it had already issued. (See Appellant’s Brief, at 27). To the contrary, it is

well-settled that the jury is presumed to follow all of the trial court’s

instructions. See Commonwealth v. Smith, 167 A.3d 782, 790 (Pa. Super.

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2017), appeal denied, 179 A.3d 6 (Pa. 2018). Accordingly, Appellant’s second

issue merits no relief.

      In his final issue, Appellant claims the trial court erred in failing to grant

his motion to dismiss the firearms not to be carried without a license charge

at the end of the Commonwealth’s case. (See Appellant’s Brief, at 30-34).

He argues that the court should have granted this motion where the

Commonwealth failed to establish the elements of transport or concealment

of the gun. (See id. at 30, 33). This issue is waived.

      “[W]hen a defendant does not rest following denial of a demurrer, but

instead presents a defense, the correctness of the ruling on the demurrer is

not preserved for appellate review; the proper procedure is to challenge the

sufficiency of the evidence.” Commonwealth v. Zambelli, 695 A.2d 848,

849 n.1 (Pa. Super. 1997) (citations omitted).

      In this case, the record reflects that Appellant presented a defense after

the court denied his motion for a demurrer. (See N.T. Trial, 3/23/17, at 100-

01, 106). Therefore, we agree with the trial court and the Commonwealth

that he did not properly preserve this issue for appellate review.             See

Zambelli, supra at 849 n.1; (see also Trial Ct. Op., at 11-12;

Commonwealth’s Brief, at 14-15).

      Moreover, even if Appellant instead had challenged the sufficiency of the

evidence to support the firearms violation, he would not be entitled to relief.

             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

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      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 [that
      of] 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. Mickel, 142 A.3d 870, 876 (Pa. Super. 2016) (citations

omitted).

      Section 6106 of the Crimes Code provides, in pertinent part, that “any

person who carries a firearm in any vehicle or any person who carries a firearm

concealed on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license under this chapter

commits a felony of the third degree.”        18 Pa.C.S.A. § 6106(a)(1).      “[T]o

establish a violation of section 6106, the Commonwealth must establish that

a defendant acted intentionally, knowingly or recklessly with respect to each

element[.]” Commonwealth v. Scott, 176 A.3d 283, 291 (Pa. Super. 2017)

(citations and internal quotation marks omitted).

      Here, the evidence showed that Appellant drove his work van to the bar

on the night of the incident.     (See N.T. Trial, 3/22/17, at 161-63).         He

approached Gibbons and Lofton outside of the bar with a gun, put the gun to


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Gibbons’ head, and shot him in the foot and back. (See id. at 23-26). Police

then recovered the gun from his home. (See N.T. Trial, 3/23/17, at 27).

      Upon review, viewing the evidence admitted at trial in the light most

favorable to the Commonwealth as verdict winner, we conclude that the

evidence was sufficient to sustain Appellant’s conviction for firearms not to be

carried without a license.   The evidence clearly established that Appellant

intentionally carried a firearm in a vehicle without a valid and lawfully issued

license. See 18 Pa.C.S.A. § 6106(a)(1); Scott, supra at 291. Therefore,

Appellant’s final issue would not merit relief, even if it were not waived.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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