J-S44018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HERMAN EDMONDSON                           :
                                               :
                       Appellant               :   No. 18 WDA 2019

      Appeal from the Judgment of Sentence Entered December 10, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0000038-2018


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 22, 2019

        Appellant Herman Edmondson appeals from the judgment of sentence

entered following his jury trial convictions for four counts of conspiracy to

commit aggravated assault.1 He challenges the trial court’s admission of

certain video evidence as well as the sufficiency and weight of the evidence.

We affirm.

        The facts and procedural history of this case, as gleaned from the trial

court’s opinion and the certified record, are as follows. On October 28, 2017,

Lawrence Johnson shot two victims, Martez Hunter and Arthur Smart, outside

the Ultraview Lounge (“Ultraview”) in Erie, Pennsylvania. The victims

sustained serious bodily injury as a result of the shooting. Johnson ultimately

entered a negotiated plea of no contest to aggravated assault while Appellant

____________________________________________


1   18 Pa.C.S.A. §§ 903 and 2702(a)(1) & (4).
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proceeded to a jury trial on the charge of conspiracy to commit aggravated

assault.

      At trial, the Commonwealth presented the testimony of several

witnesses, as well as video surveillance evidence (“Video”), depicting several

angles inside and directly outside of the Ultraview on the night in question. To

authenticate the Video, the Commonwealth presented the testimony of

Valinton Foster, a part-owner of the building where the Ultraview was located.

Foster testified that he was aware of a video surveillance system, which

captured footage from both inside and outside the bar, and he was familiar

with the images taken from those cameras. N.T. 10/15/18 a.m. at 57-66. He

also explained that the computer system used to maintain the surveillance

materials was located on the first floor of the building. Id.

      The Commonwealth also provided the testimony of Rotesha Silveus, an

eyewitness to the events of October 28. Silveus admitted to driving Johnson

to the Ultraview that night, although she claimed that she did not know him

prior. Id. at 28; 34. Silveus also testified that the Video accurately depicted

those present outside the Ultraview at the relevant time and the events that

took place on that night. Id. at 31-33; 40-44. Appellant also testified

regarding the Video by narrating the footage, scene-by-scene, and explaining

what he personally observed from his vantage point. N.T. 10/15/18 p.m. 39-

61; 67-69. He also explained his familiarity with the surveillance system, due

to his former employment as security for the Ultraview. Id. at 59-61.




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      After the trial court admitted the Video over Appellant’s objections, the

Commonwealth showed it to the jury. The Video showed Appellant, at the

Ultraview on the night in question, escorting Johnson into the bar at

approximately 2:48 a.m. through the back entrance, which did not have a

metal detector. In his testimony, Appellant admitted that, ordinarily,

individuals would not be permitted to enter the bar at that time of night. Id.

at 45-46. The Video from inside the Ultraview depicts Johnson and Appellant

talking closely with each other, after they entered the establishment. At

approximately 2:54 a.m., the pair left the bar area but returned shortly

thereafter. The victims left the Ultraview at approximately 3:00 a.m., and

Appellant and Johnson followed closely behind. Once outside Appellant and

Johnson spoke briefly and shook hands by Silveus’s car. Very shortly

thereafter, the Video shows Johnson running behind the victims and shooting

them. While the rest of the bystanders seem to flee in other directions,

Appellant appears to wait for Johnson and then flees the scene with him in the

same direction.

      Appellant testified in his own defense. Although he denied being

involved with the shooting, Appellant admitted lying to police by claiming that

he did not know Johnson before the night in question. Id. at 62. Further,

Appellant admitted that he and Johnson had contact with each other, via

phone and text, hours after the shooting. Id. at 72-73. Detective Bogart

confirmed this contact, stating that telephone records established that




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Johnson and Appellant had been in contact 141 times during that time period.

Id. at 26.

      After a jury convicted Appellant of the above-referenced charges, the

trial court sentenced him to an aggregate sentence of 84 to 168 months’

incarceration on December 10, 2018. Appellant filed a timely post-sentence

motion, challenging, inter alia, the weight of the evidence. On December 14,

2018, the trial court issued an order granting Appellant credit for time served

but denying his post-sentence motion in all other respects. Appellant filed a

timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The

trial court issued a responsive Pa.R.A.P. 1925(a) opinion.

      Appellant presents the following issues on appeal:

      1. Whether the trial court erred in allowing into evidence video
         footage of the events that occurred at the Ultraview Lounge on
         October 28, 2017, when said footage was not authenticated by
         a witness who could testify to the accuracy of the portrayal.

      2. Whether the evidence was sufficient to support a finding of guilt
         for four counts of conspiracy to commit aggravated assault
         where the only evidence the Commonwealth introduced to
         support the allegations was the improperly-admitted video
         footage of [Appellant] conversing with the shooter prior to the
         shooting, and footage of him fleeing the scene in the same
         general direction of the shooter after shots were fired.

      3. Whether [Appellant’s] conviction of four counts of conspiracy
         to commit aggravated assault was against the weight of the
         evidence where the only evidence the Commonwealth
         introduced to support the allegations was the improperly-
         admitted video footage of [Appellant] conversing with the
         shooter prior to the shooting, and footage of him fleeing the
         scene in the same general direction of the shooter after the
         shots were fired.


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Appellant’s Br. at 6.

      In his first issue, Appellant argues that the trial court erred by admitting

the   Video   in   this   case.   Specifically,   Appellant   contends   that   the

Commonwealth failed to present authenticating evidence to establish that the

Video portrayed events accurately. To this end, Appellant maintains that

witness Foster, while testifying about the surveillance system in place at the

Ultraview, was unable to confirm that the Video accurately depicted the events

on the night in question nor was he able to establish how the video was

prepared or handled after it was obtained by police. Thus, Appellant asserts

that the trial court erred by admitting the Video on the basis of Foster’s

testimony. We disagree.

      “A trial court has broad discretion to determine whether evidence is

admissible and a trial court's ruling on an evidentiary issue will be reversed

only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa.Super. 2013) (citing Commonwealth v. Cook, 676 A.2d 639,

647 (Pa. 1996)). We do not disturb a ruling admitting evidence “unless that

ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support to be clearly erroneous.” Id. (quoting

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our

scope of review over an evidentiary question is plenary, we may review the

ruling within the context of the entire record. Id.

      Authentication is required prior to the admission of evidence.            The

proponent of the evidence must introduce sufficient evidence that the matter

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is what it purports to be. See Pa.R.E. 901(a). “Testimony of a witness with

personal knowledge that a matter is what it is claimed to be can be sufficient.”

Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa.Super. 2018).

      Demonstrative evidence, like the Video here at issue, “is tendered for

the purpose of rendering other evidence more comprehensible to the trier of

fact.” Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa.Super. 2011)

(citation omitted). To authenticate video evidence, “[i]t is not necessary that

the maker of the videotape testify to the tape’s accuracy; any witness familiar

with the subject matter can testify that the tape was an accurate and fair

depiction   of   the   events   sought   to    be   shown.”   Commonwealth v.

Impellizzeri, 661 A.2d 422, 428 (Pa.Super. 1995) (citations omitted).

      In this case, Appellant contends that the trial court erred by relying on

Foster, who did not testify that the Video accurately represented the events

on the night in question, to authenticate the Video. However, the trial court

did not rely upon Foster’s testimony alone. See Tr. Ct. 1925(a) Opinion,

2/14/19, at 4-5. In fact, the court considered the testimony of eyewitness

Silveus, who could confirm that the Video accurately depicted those present

at the Ultraview at the relevant time, as well as the events of the shooting

and the aftermath. Further, Appellant also testified regarding the Video,

narrating the video screen by screen. Further, in his testimony, Appellant

admitted to his familiarity with the surveillance system, due to his previous

employment at the Ultraview. Thus, we hold that the trial court had ample

evidence upon which to conclude that the Video was a fair and accurate

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depiction of the events portrayed. See Mangel, 181 A.3d at 1158-59;

Impellizzeri, 661 A.2d at 428. Therefore, the trial court did not abuse its

discretion by finding that the Commonwealth properly authenticated the

Video. See Huggins, 68 A.3d at 966; Pa.R.E. 901(a).

       Turning to Appellant’s second issue, he argues that the evidence was

insufficient to support his conviction for conspiracy to commit aggravated

assault. Appellant does not argue that Johnson did not commit aggravated

assault by shooting the victims but instead maintains that the evidence was

insufficient to prove that he and Johnson entered into a conspiracy to commit

aggravated assault. To this end, he avers that the Video does not establish

that he knew about Johnson’s intention to shoot the victims, let alone that he

assisted Johnson in committing the crime. Appellant points out that the Video

did not have audio, so no incriminating conversations between himself and

Johnson could be heard. Further, he contends that the Video merely depicts

him conversing with Johnson and running away from the crime scene in the

same    direction   as   Johnson.   Appellant   also   emphasizes   that   the

Commonwealth did not present any testimony that could establish that

conversations took place between Johnson and himself regarding plans for a

shooting.

       Appellant likens his case to that presented in Commonwealth v.

Swerdlow, 636 A.2d 1173 (Pa.Super. 1994). In that case, our Court

concluded that the evidence was insufficient to support the appellant’s

conspiracy to commit burglary conviction. The trial court found that the

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evidence the Commonwealth presented, in that case, failed to establish any

connection between the perpetrator of the burglary and the appellant except

for the appellant’s presence in his own home, a location the perpetrator used

at some point as a staging area for the burglary. Id. at 1178. Our Court

emphasized that mere presence at part of the scene of the crime is not enough

to sustain a conspiracy conviction absent additional evidence to establish a

connection with the perpetrator of the underlying offense. Id. In this case,

Appellant contends that he was also merely present at the scene of the

shooting and the Commonwealth failed to provide any evidence of a

conspiracy agreement between himself and the shooter. Thus, Appellant

asserts that the evidence was likewise insufficient to support his conspiracy

convictions. We do not agree.

      Upon a challenge to the sufficiency of the evidence, “we must determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crime charged is established

beyond a reasonable doubt.” Commonwealth v. Green, 204 A.3d 469, 484

(Pa.Super. 2019). “The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Id. at 484-85 (citation omitted).

      Under Pennsylvania law, “[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 . . . agrees to aid such other person in the

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planning or commission of such crime[.]” 18 Pa.C.S.A. § 903(a)(2). A

conspiracy agreement may be established via circumstantial evidence.

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). “The

conduct of the parties and the circumstances surrounding such conduct may

create a web of evidence linking the accused to the alleged conspiracy beyond

a reasonable doubt.” Id. (citation omitted). The conspiracy agreement itself

“can be inferred from a variety of circumstances, including, but not limited to,

the relation between parties, knowledge of and participation in the crime, and

the circumstances and conduct of the parties surrounding the criminal

episode.” Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)

(citation omitted).

      Here, the trial court concluded that the circumstantial evidence

presented was sufficient to support Appellant’s conspiracy convictions. The

court noted that the Video established that Appellant escorted Johnson into

the Ultraview through a back entrance, which Appellant knew was not

equipped with a metal detector. Thereafter, the Video showed Appellant and

Johnson conversing with each other and remaining in physical proximity to

each other. Once the victims left the bar at approximately 3:00 am, Appellant

and Johnson followed close behind. The video also depicts the pair engaging

in a handshake outside the Ultraview, seconds before the shooting.

Thereafter, Appellant is seen waiting for Johnson before running away from

the scene with the shooter. Further, the trial court emphasized that the

Commonwealth established that Appellant and Johnson were in repeated

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contact with each other shortly after the shooting, via voluminous telephone

calls and text messages.

      Viewing the evidence presented in favor of the Commonwealth as the

verdict-winner, as we must, we agree with the trial court’s determination that

ample evidence supported Appellant’s convictions. See Green, 204 A.3d at

484. As the trial court noted, a web of circumstantial evidence, via the Video

and the telephone records, proved that Appellant was not only present at the

crime scene but confirmed a close connection between Appellant and Johnson

sufficient to establish a conspiracy agreement between the two. See Devine,

26 A.3d at 1147; Perez, 931 A.2d at 708. Thus, contrary to Appellant’s

contention, the instant case differs from Swerdlow in that the evidence

showed that Appellant was more than merely present at the crime scene.

Therefore, we conclude that the evidence was sufficient to support Appellant’s

conspiracy to commit aggravated assault convictions.

      In his last issue on appeal, Appellant contends that his convictions for

conspiracy to commit aggravated assault were against the weight of the

evidence. He argues that the Video does not depict him behaving in an “out

of the ordinary way” during the night in question. Appellant’s Br. at 24. He

asserts that the Video only shows him conversing with Johnson and running

in the same direction as the shooter, after the shooting took place. Thus,

Appellant maintains that his convictions denied him “fundamental justice”

because the convictions were contrary to the weight of the evidence. Id. at

25. We find Appellant’s weight claim to be devoid of merit.

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      When reviewing a weight claim, we begin by noting that the jury is free

to believe all, some, or none of the evidence. Commonwealth v. Roane, 204

A.3d 998, 1001 (Pa.Super. 2019). Further, “[a] trial court may only grant a

new trial on a weight claim ‘when the jury’s verdict is so contrary to the

evidence as to shock one’s sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to prevail.’”

Commonwealth v. Hall, 199 A.3d 954, 962 (Pa.Super. 2018) (citation

omitted). We give great deference to the trial court’s ruling on a weight claim,

as the court observed the evidence presented at trial, and will only reverse if

the trial court has abused its discretion. Roane, 204 A.3d at 1001; Hall, 199

A.3d at 962.

      In the instant case, the trial court found that Appellant’s contention that

his convictions were contrary to the weight of the evidence lacked merit and

its determination in this regard was not an abuse of discretion. See Tr. Ct.

Op. at 10. As outlined above, a web of circumstantial evidence linked Appellant

to Johnson and a conspiracy to shoot the victims. The Video shows Appellant

in close contact with Johnson at the scene of the crime and the subsequent

contact between Appellant and the shooter was established by the voluminous

amount of telephone calls and text messages between the pair shortly after

the shooting. Accordingly, we conclude that the trial court did not abuse its

discretion by determining that Appellant’s conspiracy convictions did not shock

one’s sense of justice and thus were not contrary to the weight of the

evidence. See Roane, 204 A.3d at 1001; Hall, 199 A.3d at 962.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2019




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