J-S44036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARTTRELL WELLS,                            :
                                               :
                       Appellant               :       No. 599 EDA 2017

            Appeal from the Judgment of Sentence January 19, 2017
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0002899-2015

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 31, 2018

        Arttrell Wells (“Wells”) appeals from the judgment of sentence imposed

following his convictions of robbery, aggravated assault, criminal conspiracy,

and possession of an instrument of crime (“PIC”).1 We affirm.

        In its Opinion, the trial court set forth the relevant factual background

as follows:

                Complainant, Rashad Harris [(“Harris”)], a reluctant
        Commonwealth witness, testified that on January 18, 2015,
        [Wells], in concert with others, went to [Harris]’s hotel room and
        asked both [Harris] and his girlfriend for money. [Harris] and his
        girlfriend informed [Wells] that they did not have any money.
        Later that day, [Harris] heard that [Wells] was on his way to [the
        home of Eric Miller (“Miller”),] located at 5513 Spring Street in the
        city and county of Philadelphia. [Harris] went to [] Miller’s home
        with the belief that [Wells] had stolen something from him and
        [Harris] wanted to get his things back.

               [Harris] testified that when he questioned [Wells] about his
        stuff, [Wells] swung at him and they began fighting. Once the
____________________________________________


1   See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2702(a)(1), 903, 907(a).
J-S44036-18


     fight began, other individuals who were also present, joined in and
     began punching [Harris]. During the fight, [Wells] punched
     [Harris] approximately 20 times[,] and then, while [Harris] was
     on the ground getting punched by [] Miller, [Wells] grabbed a
     drinking glass and threw it at [Harris]. The glass struck [Harris]
     in the face and shattered. As a result, [Harris] sustained a broken
     nose, broken cheekbone, numerous stitches to his nose, and
     lacerations to his face.

           After the assault, [Harris] testified that his brother[, Aaron
     Harris (“Aaron”),] “told me to give him the money out of my
     pocket” and “dug in my pocket and took my money, my cell
     phone, [and] my car keys.” [Harris] testified that he “fought [his]
     way out of the house.” [He stated: “]I was trying to get out of the
     house and they attacked me one more time, not trying to let me
     out of the house.” Once he finally managed to get out of the
     house, [Harris] “saw a cop car. The cop car stopped and called
     an ambulance.” After police banged on [Miller’s door], [Wells],
     along with [Aaron,] “went out the back door, [and] went over the
     fence.” Furthermore, while in the hospital, [Harris] testified that
     [Aaron] called to see if he was okay, when [Wells] then “got on
     the phone and told me don’t do that snitch stuff.”

                                     ***

            On February 4, 2015, [Wells] was arrested and charged with
     numerous offenses, including, inter alia[:] [r]obbery –
     [t]hreatening [s]erious [b]odily [i]njury; [a]ggravated [a]ssault;
     [c]onspiracy – [r]obbery – [t]hreatening [s]erious [b]odily
     [i]njury; and [PIC].

            On November 21, 2016, [Wells] waived his right to a jury
     trial. At the conclusion of his [bench] trial, [Wells] was found
     guilty on all charges. … [Wells] was sentenced to a total of 4½ to
     9 years of incarceration in a state correctional facility, followed by
     5 years of probation.

            … On February 2, 2017, [Wells] timely filed the instant
     appeal to the Superior Court of Pennsylvania. On February 6,
     2017, the [trial court] filed and served [Wells] an Order pursuant
     to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,
     directing [Wells] to file and serve a Statement of Errors
     Complained of on Appeal within 21 days of the [trial court]’s
     [o]rder.


                                     -2-
J-S44036-18


           On February 27, 2017, [Wells] timely filed his [Concise
      Statement]….


Trial Court Opinion, 8/16/17, at 1-2, 3-5 (italicization added; citations and

footnotes omitted; paragraphs reordered).

      On appeal, Wells raises the following question for our review: “Was the

evidence insufficient to support all of [Wells’s] convictions?”        Brief for

Appellant at 2.

      When considering a challenge to the sufficiency of the evidence, we

ascertain

      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 [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 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.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).




                                      -3-
J-S44036-18


      Wells alleges that the evidence was insufficient to support his

convictions for robbery, aggravated assault, criminal conspiracy, and PIC.

See Brief for Appellant at 4-12.

      Concerning his conviction of robbery, Wells argues that he did not steal

from Harris, and that the evidence did not establish accomplice liability. Id.

at 6, 8-10.   Wells claims that there was no evidence that he intended to

commit a theft from Harris, that he made an agreement with Aaron to steal

from Harris, or that he aided or attempted to aid Aaron to steal from Harris.

Id. at 8-10. Wells asserts that Aaron took Harris’s belongings at the end of

the encounter, after Wells had ceased to participate. Id. at 9.

      Concerning his conviction of conspiracy to commit robbery, Wells alleges

that the evidence did not establish that he had an agreement with Aaron to

steal from Harris. Id. at 10, 12. Wells argues that he had no reason to believe

that Aaron was going to steal from Harris, and he took no action to enforce

the demands for money made by Aaron. Id. at 12. According to Wells, his

mere presence and involvement in the fight is insufficient to support his

conviction of conspiracy to commit robbery. Id.

      Finally, concerning his conviction of aggravated assault and PIC, Wells

contends that the evidence is insufficient to support the convictions because

he acted in self-defense. Id. at 13, 14. Wells alleges that Harris started the

fight, that he threw the glass at Harris in self-defense, and that the

Commonwealth did not meet its burden of disproving self-defense. Id. at 14.


                                     -4-
J-S44036-18


Wells specifically argues that (1) he believed he was in danger of serious bodily

injury when Harris asked Miller for help; (2) he did not provoke or continue

the fight, and (3) he was unable to retreat to safety. Id. at 14-15. Wells

states that his actions were in self-defense of himself, and of Aaron, who was

also provoked by Harris. Id. at 16; see also id. (claiming that since he threw

the glass in self-defense, it was not an instrument of crime).

      In its Opinion, the trial court defined each of the offenses Wells contests,

cogently and thoroughly addressed his sufficiency challenges, and concluded

that the Commonwealth established all of the requisite elements of the

offenses beyond a reasonable doubt. See Trial Court Opinion, 8/16/17, at 6-

10; see also id. at 3-5 (wherein the trial court sets forth a recitation of the

evidence presented at trial).      We agree with the sound reasoning and

determination of the trial court, as set forth in its Opinion, and therefore affirm

on this basis with regard to Wells’s sufficiency of the evidence claims. See

id. at 6-10.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/18



                                       -5-
                                                                                  Circulated 10/11/2018 11:25 AM




                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
              COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION



    COMMONWEALTH OF PENNSYLVANIA
                                                                 599 EDA 2017
                   v.
                                                                 CP-51-CR-0002899-2015
    ARTTRELL WELLS



                                                                         FILED
                                             OPINION                    AUG 16 2017
                                                                       A�als/P091 Trial
    STATEMENT OF THE CASE                                          Office of Judicial Records

           This appeal arises out of an assault that took place at the home of Eric Miller,

    located at 5513 Spring Street, on January 18, 2015. Defendant is appealing his convictions

on the charges of Robbery, Aggravated Assault, Conspiracy', and Possession of an

Instrument of a Crime with Intent. Defendant complains there was insufficient evidence

to support his convictions. Defendant's complaints are without merit



PROCEDURAL HISTORY

           On February 4, 2015, Defendant was arrested and charged with numerous offenses

including, inter aha: Robbery - Threatening Serious Bodily lnJury2, Aggravated Assault';




                                        ).    l lllllll llllllIti
                                                 . _!�90009901
I
  Co-conspirator Enc Miller, 544 EDA 2017
2
  18 Pa CS A § 370l(a)(l)(11)
1
  18 Pa CS.A § 2702(a)
    Conspiracy - Robbery - Threatening Serious Bodily Injury"; and Possession of an

    Instrument of a Crime with Intent (PIC)5

           On November 21, 2016, Defendant waived his right to a Jury trial.           At the

conclusion of his waiver trial, Defendant was found guilty on all charges On January 19,

2017, Defendant was sentenced to 4 l,'2 to 9 years of incarceration in a state correctional

facility on the robbery charge. Defendant was also sentenced to a consecutive period of

probation of 5 years on the charge of robbery and three concurrent periods of probation of

5 years on the charges of aggravated assault> conspiracy, and PIC, all to be served

consecutively to the period of incarceration. Defendant was sentenced to a total of 4 Y2 to

9 years of incarceration in a state correctional facility, followed by 5 years of probation.

          On February 2, 2017, Todd Michael Mosser, Esq., entered his appearance for the

Defendant On February 2, 2017, Defendant timely filed the instant appeal to the Superior

Court of Pennsylvania. On February 6, 2017, the Court filed and served Defendant an

Order pursuant to Rule l 925(b) of the Pennsylvania Rules of Appellate Procedure,

directing Defendant to file and serve a Statement of Errors Complained of on Appeal withm

21 days of the Court's Order.

          On February 27, 2017, Defendant timely filed his Statement of Matters Complained

of on Appeal, raismg three issues, namely·

       I. The evidence was insufficient to support Defendant's conviction for robbery
          because there was no evidence that Defendant took or attempted to take anything
          from Mr Harns.

       2. The evidence was insufficient to [sjupport Defendant's convictions for robbery and
          conspiracy to commit robbery because there ts no evidence from which to
          reasonably infer that Defendant agreed with anyone to do anything to Mr. Harris,
          particularly since it was Mr Harris who approached Defendant and threw the first

4   18 Pa C S A § 903
5
    18 Pa CS A § 907(a)


                                               2
       punch. Even if something was removed from Mr Harris' person, that act was not
       perpetrated by Defendant Wells and there is no evidence, other than his mere
       presence at the scene, from which to infer that he had any knowledge that a theft
       would occur or that he agreed with anyone to commit or aid in the cornrrussion of
       a theft The insufficiency of the evidence regarding the conspiracy conviction is
       further evinced by the fact that it was Mr Harns who approached Defendant, not
       the other way around

    3. The evidence was insufficient to support Defendant's convictions for aggravated
       assau1t and PIC because the Commonwealth did not disprove that Defendant was
       acting in self-defense after Mr. Hams served as the aggressor, approached
       Defendant, and threw the first punch in this incident.



EVIDENCE AT TRIAL

       Complainant, Rashad Harris, a reluctant Commonwealth witness, testified that on

January 18, 2015, Defendant, in concert with others, went to Complainant's hotel room

and asked both Complainant and his girlfriend for money. Complainant and his girlfriend

mformed Defendant that they did not have any money. (N.T., 11121/16, pg. 24) Later that

day, Complainant heard that Defendant was on lus way to Enc Miller's home located at

5513 Spring Street in the city and county of Philadelphia. (N T., 11 /21/16, pgs. 13, 26)

Complamant went to Mr Miller's home with the belief that Defendant had stolen

something from him and Complainant wanted to get his things back (N.T., 11/21/16, pgs.

13-15,26)

      Complainant testified that when he questioned Defendant about his stuff, Defendant

swung at him and they began fighting. (N.T, 11/21/16, pg. 26) Once the fight began, other

mdividuals who were also present, joined in and began punching Complainant (N.T,

11/21/16, pg. 26) During the fight, Defendant punched Complainant approximately 20

times and then, while Complamant was on the ground getting punched by Mr. Miller,

Defendant grabbed a drinkmg glass and threw it at Complainant. (N.T., 11/21/16, pgs 30



                                           3
-31, 55 - 56) The glass struck Complainant in the face and shattered. (N.T., 11/21/16,

pgs 26, 31)    As a result, Complainant sustained a broken nose, broken cheekbone,

numerous stiches to his nose, and lacerations to his face. (N.T., 11/21/16, pgs. 31 - 32, 34)

      After the assault, Complainant testified that his brother "told me to give him the

money out of my pocket" and "dug in my pocket and took my money, my cell phone, my

car keys" (N.T., 11/21/16, pg 26, 57 - 58) Complainant testified that he "fought my way

out of the house. I was trying to get out of the house and they attacked me one more time,

not trying to let me out of the house." (N.T., 11121/16, pg. 59) Once he finally managed

to get out of the house, Complainant "saw a cop car. The cop car stopped and called an

ambulance." (N T , l l /21116, pg 26) After police banged on the door, Defendant, along

with Complainant's brother "went out the back door, went over the fence." (NT, 11/21/16,

pg. 88) Furthermore, while in the hospital, Complainant testified that his brother called to

see if'he was okay, when Defendant then "got on the phone and told me don't do that snitch

stuff" (N.T., 11/21/16, pg. 36)

       Philadelphia Police Detecnve Matthew Carny testified that on January 19, 2015,

Complainant arrived at the 181h District and made a complaint about having been assaulted

the day before (N.T, 11/21/16, pg. 65) Detective Caray interviewed Complainant about

the incident and typed up his statement with Complainant seated next to him (NT.,

11/21/16, pgs 65 - 66) Detective Caray then gave Complainant the opportunity to review

the typed statement and to make any corrections. (N.T., 11/21/16, pg. 66) Complainant

did not make any corrections before signing the bottom of each page of the Investigatron

Review Record while in Detective Carays presence. (NT, 11/21/16, pgs 66 - 67)




                                             4
        During the interview, Detective Caray testified that Complainant seemed upset and

cried several times throughout the interview. (N .T., 11/21/16, pg 67)       Additionally,

Detective Caray testified that Complainant did not appear to be under the influence of

anything, as he understood Detective Carey's questions and was able to provide narrative

responses to questions (NT, 11/21 /l 6, pg. 67) In addition, Detective Caray testified that

on February 17, 2015, when he picked Complainant up for the grand Jury heanng,

Complainant did not appear to be under the influence of anything and that he was able to

have normal conversations with Complainant (N T , 11/21116, pgs. 67 - 68)



DISCUSSION OF THE ISSUES RAISED

THE     EVIDENCE        WAS      SUFFICIENT        TO     SUPPORT        DEFENDANT'S

CONVICTIONS.

      In his statement of errors, Defendant complains that the evidence at trial was

insufficient to support his convictions. Defendant's complaints are without ment.

      "A claim challenging the sufficiency of the evidence is a question of law."

Commonwealth v. Fisher, 47 A 3d 155, 157 (Pa. Super. 2012) citing Commonwealth v.

Widmer, 560 Pa 308, 319, 744 A.2d 745, 751 (2000) Evidence rs deemed sufficient to

support the verdict when it establishes each material element of the crime charged and the

commission thereof by the accused, beyond a reasonable doubt. Widmer, supra citing

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993). Where the evidence offered to

support the verdict is in contradiction to the physical facts, in contravention to human

experience and the laws of nature, then the evidence is insufficient as a matter of law.

Fisher, supra. When reviewing a sufficiency claim, the court ts required to view the




                                            s
evidence in the light most favorable to the verdict winner, and give the prosecution the

benefit of all reasonable inferences to be drawn from the evidence. Widmer, supra citing

Commonwealth v. Chambers, 599 A 2d 630 (Pa. 1991).

         In considering a sufficiency claim, the Superior Court "may not weigh evidence, nor

substitute the fact-finder'sjudgrnent with this Court's" Commonwealth v. Hennigan, 753

A.2d 245, 253 (Pa. Super. 2000). The facts and circumstances which have been established

by the Commonwealth are not required to preclude every possibility of innocence Id A

court may draw inferences from the facts so long as the inferred facts are more hkely than

not to flow from the proven facts      Commonwealth v. Wodjak, 466 A.2d 991, 996 (Pa.

1983) The Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of "wholly circumstantial evidence." Hennigan,

supra.

         In his first statement of errors, Defendant complains the evidence was insufficient

to support his conviction for robbery "because there was no evidence that Defendant took

or attempted to take anything from Mr. Harris." Defendant's complaint misstates the

record and rs without merit.

         Defendant was convicted of robbery pursuant to 18 Pa CS.A.§ 370l(a)(I)(ii} and

conspiracy to commit robbery (inflicts serious bodily injury) pursuant to 18 Pa C.S.A §

903. Robbery is graded as a felony of the first degree, which provides in part, that a person

commits robbery when in the "course of committing a theft" he "threatens another with or

intentionally puts him in fear of immediate serious bodily injury" A theft occurs when

one "unlawfully takes, or exercises unlawful control over, moveable property of another

with intent to depnve him thereof." 18 Pa.C.S.A. § 3921(a). Section 3_70l(a)(2) of the




                                              6
 robbery statute states that an act is in the "course of committing a theft" if it occurs "in an

attempt to commit theft or in flight after the attempt or commission." In other words, it is

not necessary that a defendant have successfully completed a theft in order to commit

robbery. See Commonwealtk v. Robinson, 936 A.2d l 07, l l O (Pa Super 2007)

       The testimony of the Commonwealth's witnesses, as discussed above, establishes

that Defendant attempted to deprive Complamant of his property when he, in concert with

others, assaulted Complainant before fleeing the scene with Complainant's property, and

then later threatening Complainant while he was in the hospital. The Court finds that the

circumstantial evidence presented in this case by the Commonwealth is suffi cient to

support Defendant's convictions for robbery and conspiracy to commit robbery.

       In his second statement of errors, Defendant challenges the sufficiency of the

evidence for his conspiracy to commit robbery conviction "because there is no evidence

from which to reasonably infer that Defendant agreed with anyone to do anything to

Mr. Harris." Defendant's complaint is without merit.

      Defendant was convicted of conspiracy to commit robbery (inflicts serious bodily

injury) pursuant to 18 Pa. C.S.A § 903, which provides in part that a person commits

conspiracy if he "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."

      "In most cases of conspiracy, it is difficult to prove an explicit or formal agreement;

hence, the agreement is generally established via circumstantial evidence, such as by "the

relations, conduct, or circumstances of the parties or overt acts on the part of co-




                                              7
conspirators."? Commonwealth v. Sanchez, 623 Pa. 253, 303, 82 A 3d 943, 973 (2013)

Once a conspiracy has been established, the actions of each co-conspirator may be imputed

to the other conspirators   In this regard, "[tjhe law in Pennsylvania ts settled that each

conspirator is criminally responsible for the actions of his co-conspirator, provided that the

actions are accomplished in furtherance of the common design." Commonwealth v.

Baskerville, 681 A.2d 195, 201 (Pa Super 1996)

       Here, the Commonwealth presented evidence that Defendant acted together, with

his co-conspirator, Aaron Harris, with the intent of depriving Complainant of his

belongings.   Defendant mflicted serious injury on Complainant, in furtherance of the

conspiracy to deprive Complamant of his money, cell phone, and car keys, before fleeing

the scene with lus co-conspirator Thus, the Commonwealth presented sufficient evidence

to support Defendant's conviction of conspiracy to commit robbery.

      In his third statement of errors, Defendant complains that the evidence was

insufficient to support Defendant's convictions for "aggravated assault and PIC because

the Commonwealth did not disprove that Defendant was acting in self-defense after

Complainant served as the aggressor, approached Defendant, and threw the first punch "

Defendant's complamt is without merit.

      Defendant was convicted of aggravated assault pursuant to 18 Pa.C.S A.§ 2702(a),

which provides in part that a person commits aggravated assault if he "attempts to cause

serious bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the value of human

hfe." Complainant testified that Defendant punched lum m the face "[a]bout 20 times."

(N.T., 11/21/16, pg. 30)




                                             8
        Moreover, a person shall be found guilty of PIC under 18 Pa.C.S A. § 907(a) "if he

possesses any instrument of crime with intent to employ it criminally " The statute defines

an instrument of crime as"(]) [a]nythmg specially made or specially adapted for cnrmnal

use   (2) Anythmg used for criminal purposes and possessed by the actor under

circumstances not manifestly appropriate for lawful uses it may have" 18 Pa. CS.A. §

907(d). Complainant testified that Defendant "threw a glass cup on my face and it broke

on my face '' (N T., 1 1121/16, pg 26)      When asked about the extent of his mjunes,

Complainant testified that he suffered a "[b]roken nose, broken cheekbone, stitches to my

nose, a lot of cuts to my face." (N.T., 11/21116, pg. 34) It is apparent from the record that

Defendant plainly used the glass cup as an "instrument of crime" as defined in subsection

(a) of 18 Pa C S.A § 907 to cause further injury to Complainant after he was already

severely injured.

       "When a defendant raises the issue of self-defense, the Commonwealth bears the

burden to disprove such a defense beyond a reasonable doubt            The Commonwealth

sustains this burden if it establishes at least one of the following: (l) the accused did not

reasonably believe that he was in danger of death or serious bodily injury; (2) the accused

provoked or continued the use of force; or (3) the accused had a duty to retreat and the

retreat was possible with complete safety The Commonwealth need only prove one of

these elements beyond a reasonable doubt to sufficiently disprove a self-defense claim."

Commonwealth v. Ventura, 975 A 2d 1 128, 1143 (Pa. Super. 2009) (Internal citations and

quotations ornitted.)

      Furthermore, "[tjhe law does not require an accused to elect an avenue of retreat

where a reasonably prudent person would conclude that such a decision would increase his




                                             9
or her exposure to the threatened harm." Id. at 1143-44 "Although the Commonwealth is

required to disprove a claim of self-defense          a Jury rs not required to believe the

testimony of the defendant who raises the claim." Commonwealth v. Houser, 18 A.3d

1128, 1135 (Pa.2011) (quoting Commonwealth v. Carbone, 574 A. 2d 584, 589 (Pa. 1990)

"It remains the province of the jury to determine whether the accused's belief was

reasonable, whether he was free from provocation, and whether he had no duty to retreat."

Commonwealth v. McC/endo11, 874, A.2d 1223, 1230 (Pa. Super. 2005) (Internal citation

omitted)

         The testimony of the Commonwealth's witnesses, as discussed above, establishes

that Complainant was unarmed, outnumbered, and severely beaten. Retreat for Defendant

was possible without exposing him to additional harm Furthermore, there was no evidence

to suggest that Complainant was continuing the fight or that he was pursuing Defendant

To the contrary, 1t is clear from the testimony at trial that the Commonwealth met its burden

111   establishing that Defendant, instead of retreating, went after Complainant with a glass

cup and caused even more injury to Complainant by smashing the glass on his face



CONCLUSION

          After a careful review of the record, the Court finds that there was sufficient

credible evidence to support Defendant's convictions.


                                                BY THE COURT




August 16, 2017




                                               10
