J-S18034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        v.

JOVANNE HEATH

                                 Appellant            No. 1703 EDA 2016


              Appeal from the Judgment of Sentence May 6, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0000949-2014

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 11, 2017

        Appellant, Jovanne Heath, appeals from the judgment of sentence

imposed in the Philadelphia County Court of Common Pleas after he was

found guilty of robbery,1 conspiracy,2 and possession of an instrument of

crime3 at a nonjury trial. Appellant claims that the evidence was insufficient

to sustain the trial court’s finding that he was involved in the above-stated

crimes. We affirm.

        The trial court summarized the evidence presented at trial as follows.

              The complainant, Mr. Jerry Slueue, testified that in the
           late night to early morning hours of January 4, 2014, he
           was the victim of a robbery outside of his sister's home at

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(ii).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 907.
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       6333 Kingsessing Ave. in the city and county of
       Philadelphia, when a firearm was pointed at him and his
       two cell phones were taken.        Earlier on the night in
       question, Mr. Slueue was out celebrating his return to the
       country from playing soccer in Italy. After leaving the first
       nightclub, where he was attending an “all white party,”
       where it is customary for attendees to wear white clothing,
       Mr. Slueue observed Defendant, wearing a white blazer
       and white pants, at a second nightclub staring at him.
       Subsequently, Mr. Slueue left the second nightclub in order
       to take “the girls that [he] went out with that night” home.
       As he was leaving the club, Mr. Slueue saw a blue Nissan
       driving slowly by him with its headlights off.

           After dropping off the girls, Mr. Slueue returned to his
       sister’s home and again saw the same blue Nissan stopped
       in front of his sister’s house at which point one of the car's
       occupants asked him for directions to a club. Mr. Slueue
       was able to see that the driver of the vehicle was wearing
       “all white pants and a white blazer.” After giving directions
       to the club, Mr. Slueue turned to enter the house, but was
       accosted before he could enter. The assailant, pointing a
       black firearm at Mr. Slueue, took his two cell phones. The
       assailant then returned to the blue Nissan, which drove off.
       Mr. Slueue went inside the house and immediately called
       the police to report the robbery.

          Approximately 15 minutes later, police arrived at the
       house and advised Mr. Slueue that a suspect was in
       custody. On arriving at the scene, Mr. Slueue recognized
       the Nissan, the firearm used in the robbery, and his cell
       phone. Mr. Slueue recognized his cell phone by way of its
       make and model, and because it had his photos on it. Mr.
       Slueue also recognized [Appellant] as the driver based on
       the white clothing he was wearing.

          While on routine patrol in a marked patrol car, Officer
       Justin Kensey of the Philadelphia Police Department, along
       with his partner, Officer Daniel Marques, received a flash
       alerting them to a robbery in progress as well as a
       description of a Nissan as being involved. Officer Kensey
       observed a Nissan Altima fitting the description provided in
       the flash traveling northbound on the 1500 block of Cobbs
       Creek Parkway. As Officer Kensey pulled up behind the


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         Nissan, which was stopped at a red light, a different
         marked police car “shined a light” on the vehicle. In
         response, the Nissan accelerated through the red light at a
         high rate of speed. Officer Kensey followed the vehicle,
         which ultimately struck a pole at the 5600 block of
         Hoffman Ave., at which point the two occupants of the
         vehicle fled the scene. Officer Kensey pursued Defendant,
         who was dressed in all white, on foot, eventually taking
         him into custody.

            In the early morning hours of January 4, 2016,
         Philadelphia Police Detective Carl King was assigned to
         execute a search warrant on the involved vehicle.
         Detective King reported to the 5600 block of Hoffman
         Street, where he testified that he and Detective Blackwell
         executed a search warrant on the Nissan. During the
         search, a firearm and a cell phone were recovered. The
         cell phone was later identified as the one belonging to Mr.
         Slueue.

Trial Ct. Op., 9/12/16, at 4-6 (record citations omitted).

      Appellant, along with a codefendant, Horrain Blair, proceeded to a

nonjury trial on January 15, 2016. The trial court found Appellant guilty of

robbery, conspiracy to commit robbery, and possession of an instrument of

crime, but acquitted him of simple assault.      On May 6, 2016, the court

sentenced him to aggregate three to seven years’ imprisonment.4

      Appellant timely appealed from the judgment of sentence and

complied with the trial court’s order to submit a Pa.R.A.P. 1925(b)

statement.    The trial court filed a responsive opinion suggesting that




4
  The trial court granted codefendant Blair’s motion for judgment of
acquittal.



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Appellant’s claims were waived due to vague assertions of error in his Rule

1925 statement and that Appellant’s claims were meritless.

        Appellant presents the following question for review:

           WERE THE GUILTY VERDICTS RENDERED BY THE TRIAL
           COURT CONTRARY TO LAW INSOFAR AS THE EVIDENCE
           PRESENTED BY THE COMMONWEALTH WAS INHERENTLY
           CONTRADICTORY AS WELL AS INSUFFICIENT TO SUSTAIN
           THE VERDICTS?

Appellant’s Brief at 3.

        We first consider the trial court’s suggestion that Appellant’s Rule

1925(b) statement was defective and requires waiver of his issue on appeal.

Trial Ct. Op. at 2-4. This Court has stated that a Rule 1925(b) statement:

           shall concisely identify each ruling or error that the
           appellant intends to challenge with sufficient detail to
           identify all pertinent issues for the judge.            The
           Pennsylvania Supreme Court has explained that Rule 1925
           is a crucial component of the appellate process, which is
           intended to aid trial judges in identifying and focusing
           upon those issues which the parties plan to raise on
           appeal. Moreover, it is well-settled that [i]issues that are
           not set forth in an appellant’s statement of matters
           complained of on appeal are deemed waived.

Commonwealth v. Proctor, --- A.3d ---, ---, 2017 WL 527718, at *2 (Pa.

Super. 2017) (citations and quotation marks omitted).

        We agree with the trial court that Appellant’s Rule 1925(b) statement

failed to articulate or even suggest that Appellant intended to challenge the

complainant’s identification.5   Therefore, waiver is appropriate under Rule

5
    Instantly, Appellant’s Rule 1925(b) statement read:




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1925(b)(4)(vii). See Pa.R.A.P. 1925(b)(4)(vii); Proctor, 2017 WL 527718,

at *2.

         Nevertheless, our review reveals that no relief is due on Appellant’s

specific challenge of the evidence linking him to the robbery. 6 Appellant sole

claim is that the complainant’s identification of him as the driver of the

vehicle was unworthy of belief.      However, we find sufficient corroborative

and circumstantial evidence to establish Appellant was the driver of the

vehicle involved in the robbery.

         When reviewing a challenge to the sufficiency of the evidence,

              [t]he standard we apply . . . 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 of the 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

           1. Was the verdict(s) of guilty against the “weight of the
           evidence”?

           2. Did the Commonwealth not meet its burden in proving
           guilt beyond a reasonable doubt, thereby making a “lack of
           sufficiency of the evidence”?

           3. Does the verdict in this case “shock the conscience”,
           such that the defendant should be awarded a new trial?

Appellant’s Statement of Matters Complained of on Appeal, 6/22/16, at 1-2.
6
  Appellant’s brief focuses on the sufficiency of the evidence regarding his
identification as the driver of the suspect vehicle. He has abandoned his
challenges to the weight of the evidence on appeal. See Commonwealth
v. Briggs, 12 A.3d 291, 310 n. 19 (Pa. 2011).



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            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.

                                     ***

             “[E]vidence of identification need not be positive and
         certain to sustain a conviction.” Although common items
         of clothing and general physical characteristics are usually
         insufficient to support a conviction, such evidence can be
         used as other circumstances to establish the identity of a
         perpetrator. . . .           Given additional evidentiary
         circumstances, “any indefiniteness and uncertainty in the
         identification testimony goes to its weight.”

Commonwealth v. Orr, 38 A.3d 868, 872-74 (Pa. Super. 2011) (en banc)

(citations and emphasis omtitted).        Although challenges to a witness’s

identification generally go to the weight of the evidence, there is a narrow

class of claims where identity will give rise to a meaningful sufficiency of the

evidence challenge. Id. at 874.

      In Commonwealth v. Crews, 260 A.2d 771 (Pa. 1970), the

Pennsylvania   Supreme     Court   held   that   the   following   evidence   was




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insufficient to identify a defendant as being involved in the robbery and fatal

beating of a cab driver:

             The testimony, viewed in a light most favorable to the
         Commonwealth, reveals that two blacks were seen
         entering a cab, the cab driver was robbed and beaten, and
         two blacks were seen fleeing. Crews and Tedders, a
         codefendant whose first degree murder conviction has
         already been affirmed by this Court,[fn2] fit the very general
         description of the criminals as to height and coloration.
         The principal evidence on which the Commonwealth relies
         is clothing. A witness, Mrs. Schorr, who observed the two
         men fleeing from the cab, testified that the taller, lighter
         complexioned one was wearing a gold-colored sweater,
         while the shorter, darker one was wearing a black leather
         trench coat. When Tedders was arrested, he was wearing
         a black leather coat which Mrs. Schorr identified at trial as
         being the coat she saw. A gold-colored sweater was found
         in Crews’ home. Mrs. Schorr could not positively say that it
         was the same sweater which the taller felon was wearing,
         but did indicate that the color appeared to be the same.



            [fn2]
                 We emphasize that the evidence introduced in
            Tedder’s trial was far stronger than that introduced
            here. There, four witnesses testified that at different
            times, Tedders had admitted to them that he had
            stabbed the car driver.


            In    addition   to   Mrs.  Schorr’s   testimony,    the
         Commonwealth produced testimony that Crews and
         Tedders were together in at least three different places on
         the night of the crime, from 6:00 P.M. at 1:30 A.M. There
         was testimony that at 7:00 P.M. they were in the Oh Bar,
         not far from where the two men entered the cab at about
         8:30. All of the witnesses testified that Tedders was
         wearing a black leather coat or jacket. Two witnesses
         testified that Crews was wearing a gold or an orange
         sweater.




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Crews, 260 A.2d at 772 (citation omitted). In holding that the evidence in

that case was insufficient, the Crews Court explained:

         In light of the myriads of people who fit the height and
         coloration description, and in light of the commonness of a
         gold sweater and a black trench coat, the evidence failed
         to point with sufficient certitude to Crews as the
         perpetrator of the crime. The jury was forced to guess
         whether it was Crews of another light-complexioned Negro
         male wearing a gold sweater who committed the crime.
         Our system recoils at sending a man to prison for the rest
         of his life on a guess.

Id.   The Crews Court acknowledged, “that circumstantial evidence alone

can sustain a conviction, such evidence must point more conclusively toward

guilt than does that present in the instant case.” Id. (citation omitted).

      In Commonwealth v. Smith, 423 A.2d 1296 (Pa. Super. 1981), this

Court distinguished Crews based on the following corroborative evidence.

         The testimony indicates that a black male of thin build
         forcibly entered the store and attempted to remove money
         from the cash register. The culprit was wearing a highly
         identifiable jacket of a tan or orange color with a “fur” or
         sheepskin lined collar, faded blue jeans, dark shoes and
         carried a billfold with a chain around it in his hip pocket.
         After failing to open the cash register he and another black
         male who was waiting outside the store and who was
         described as a black male of stocky build and wearing a
         dark, navy pea coat ran off toward an area known as the
         Mt. Washington area of the town.

            Within twenty minutes of the robbery, the defendants,
         two black males were arrested near the Mt. Washington
         area. Defendant Smith was then attired in the dark, pea
         coat which didn’t fit him. Defendant Gould was found
         removing the orange “sheepskin” jacket from his car. The
         orange jacket did not fit him because it was too tight. It
         did fit defendant Smith. The proximity in time and place to
         the crime, the fact that both defendants were found in


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         proximity to each other near the area where the culprits
         were last seen, the relative uniqueness of the tan or
         orange colored jacket, the fact that the jackets found in
         possession of each defendant did not fit him very well but
         fit the other defendant, the fact that defendant Smith
         carried a highly identifiable billfold which was identifiable
         because of the chain he carried with it, and the fact that
         defendant Smith walked in a peculiar manner described by
         one witness as a “strut” or “cocky” coupled with the
         similarity in color, clothing and build between the
         perpetrators of the crime and the defendants, taken
         together, were sufficient facts upon which a jury could
         conclude that defendant Smith forcibly entered the store in
         order to rob it.

             He acted in concert with defendant Gould who aided
         Smith in attempting to confuse the witnesses by
         exchanging jackets with Smith after the incident. Size,
         height, weight, hair, clothing, body build, color, location
         and mannerisms are all acceptable methods of identifying
         a person. Of course facial identification is the strongest
         identification testimony. But in its absence, such as the
         instant case where the culprits wore masks, a combination
         of the above elements, if sufficiently reliable, may sustain
         a conviction.     We hold that in the instant case the
         combination of elements, unlike the situation in Crews
         and [Commonwealth v. Paschell, 657 A.2d 687 (Pa.
         Super. 1969),] where the only identification evidence
         linking defendant to the crime was a similarity of a sweater
         (Crews) or body build (Paschall), was sufficiently reliable
         to enable a jury to infer that the defendants were guilty of
         the offense beyond a reasonable doubt.

Smith, 423 A.2d at 1299.

      Instantly, the complainant testified, “the guy in the black [indicating

Appellant], I think I saw him at the after hours” club, “looking at me,

staring, and stuff like that.”   N.T., 1/15/16, at 17-18.    The complainant

stated that he was returning to his home when he noticed a blue Nissan.

Id. at 23. The complainant described the driver as wearing all white pants


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and a white blazer. Id. He testified that the person who robbed him went

back to the passenger side of the Nissan. Id. at 32. After the robbery, he

entered his house and called the police. Id. at 25. He testified that he later

saw Appellant in the back of a police van with his head down, but

“recognized him because of the clothes . . . he was wearing.” 7 Id. at 34.

The Commonwealth did not ask the complainant to make an in-court

identification of Appellant at trial.        Therefore, the reliability of the

complainant’s identification testimony is suspect. See Crews, 260 A.2d at

772.

       Nevertheless, the complainant’s identification was corroborated by

additional   evidence.   Specifically,   Officer   Marques   testified   that   at

approximately 5:00 a.m., he received a flash report of the robbery and

observed a blue Nissan at the corner of 1500 Cobbs Creek Road.8 Id. at 78.

The suspect vehicle “took off at a high rate of speed” and then crashed after

making a “right-hand turn off of 56th onto Hoffman.” Id. Officer Marques


7
  We note that the complainant attended an “all-white” party, at which
attendees dressed in all white. Thus, Appellant’s attire, while somewhat
unusual was not entirely distinctive, on that evening.
8
  The robbery occurred at 6333 Kingsessing Avenue. The Commonwealth
did not present testimony regarding the distance between 6333 Kingsessing
Avenue and 1500 Cobbs Creek Road. Additionally, the Commonwealth did
not elicit testimony regarding the time between the flash report and the
officers’ observation of the suspect vehicle. However, the complainant
testified that police officers knocked on his door to report a suspect was
apprehended approximately fifteen or twenty minutes after he reported the
incident.



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testified that he saw two males flee from the vehicle, one was wearing all

white and the other—whom the officer described as the passenger—was

wearing a dark colored hoodie with blue jeans. Id. at 77. Officer Marques

chased the passenger on foot but did not apprehend him. Id. at 79. Officer

Kensey apprehended the male in all white, who was later identified as

Appellant. Id. at 83. Officers later recovered the complainant’s cellphone

from the front passenger seat of the Nissan. Id. at 89.

      Thus, we agree with the trial court that there was sufficiently reliable

evidence that Appellant was the driver of the vehicle. Appellant was wearing

clothes consistent with those described by the complainant and was

captured after fleeing the suspect vehicle that contained the complainant’s

cellphone. Consequently, we discern no merit to Appellant’s contention that

the identification evidence in this case was insufficient.   See Smith, 423

A.2d at 1299.

      Judgment of sentence affirmed.

      Judge Solano joins the Memorandum.       Judge Panella Concurs in the

Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2017




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