J-S50042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

VIKRAM YAMBA,

                            Appellant                  No. 486 WDA 2014


     Appeal from the Judgment of Sentence entered February 12, 2013,
              in the Court of Common Pleas of Fayette County,
           Criminal Division, at No(s): CP-26-CR-0001536-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED AUGUST 11, 2014



imposed after a jury convicted him of one count of robbery (serious bodily

injury), one count of robbery (bodily injury), one count of aggravated

assault (serious bodily injury), one count of aggravated assault (bodily

injury), one count of simple assault, one count of recklessly endangering

another person, and one count of attempt to commit theft by unlawful

taking.1

       The trial court detailed the evidence presented at trial as follows:

             Dianne Hatfield was the manager of a Citgo Food Mart
       located at the intersection of Route 166 and U.S. Route 40 in
       Brownsville, Fayette County, Pennsylvania, on April 18, 2007. At
____________________________________________


1
 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 2702(a0(1) and (4), 2701(a)(3),
2705, 3921(a) and 901(a).
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     some time early in the morning, shortly after the store opened
     at 4:00 A.M., two black males entered the store and stood in
     front of the counter. One of the actors had a gun and demanded
     that Ms. Hatfield give him money, but there was none to give.
     One of the men wore a yellow baseball-type hat and had a black
     tee shirt tied over his face so that only his eyes could be seen.
     The other had a green cap and a white tee shirt tied around his
     face. The man in the yellow hat also wore gloves with the
     fingers cut out, and had a silver gun. He demanded money,
     while the other man in the green cap tried to get around the
     counter. The man in the yellow cap fired the gun inside the
     store twice without hitting anything. Although she heard two
     gunshots, Ms. Hatfield thought the gun was not real so she tried
     to spray the men with a can of mace. The mace would not spray
     so she just threw it at them. As they left the store, the man

     He then fired again while he was in the parking lot and was
     crossing the road. Both of the men got into the back of a white
     vehicle and escaped on Route 166 towards its intersection with
     Simpson Road. Ms. Hatfield returned to the store and called the
     police.

           Pennsylvania State Police Trooper David J. Hamer was one
     of the officers who responded to the call of the attempted
     robbery. Near the intersection of Route 166 and Simpson Road,
     the officers recovered several pieces of clothing, including ball
     caps. The recovered items included a black tee shirt, a yellow
     Pittsburgh Pirates ball cap, the gloves with the cut-out fingers, a
     white tee shirt, and a green New York Yankees baseball cap.
     These items were taken back to the scene of the crime, where
     they were turned over to the lead investigator, Trooper Fred
     Gregg, who packaged them as evidence and submitted them to
     the DNA lab for analysis. Also collected and submitted was a
     metal projectile found inside the store. The submission was
     made by Trooper Gregg on April 18, 2007, at 1:10 P.M., and was
     sealed again after the testing by a Tami Kloes on July 17, 2007,
     at 9:43 A.M.

           In September of 2010, Trooper Thomas Hartley was
     assigned as a criminal investigator at the Belle Vernon barracks,
     and in the Spring of 2011 he applied for and obtained a search

     DNA sample was collected on September 8, 2011.
     Commonwealth witness Sara Kinneer, a forensic supervisor in

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      the serology trace section of the state police crime lab in

      collector for DNA analysis and created the paperwork for its
      submission to the DNA laboratory. Witness Julia Brolley, a
      forensic scientist with the state police DNA laboratory, testified
      that she started the analysis of the buccal swab on September
      14, 2011. She then compared that DNA profile to the profile she
      obtained from testing the cuttings from a baseball cap, and
      determined that they came from the same individual. On recall
      to the stand, witness Kinneer told the jury that Ms. Brolley had
      performed her analysis on the yellow baseball cap, on a cutting
      she took from the sweatband area.

Trial Court Opinion, 6/18/13, at 1-3 (citations to notes of testimony

omitted). Appellant was charged with the aforementioned crimes, and a jury

trial commenced on January 7, 2013. On January 8, 2013, the jury returned

its guilty verdicts.

      On February 12, 2013, following a hearing, the trial court sentenced

Appellant to an aggregate term of imprisonment of five (5) to twelve (12)

years. Appellant filed a post-sentence motion on February 26, 2013, which

the trial court denied. Appellant filed a notice of appeal with this Court on

May 16, 2013, and filed a Pa.R.A.P 1925(b) statement of errors complained

of on appeal as instructed by the trial court.    On June 18, 2013, the trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a).       On December 27,

2013, this Court dismissed the notice of appeal for failure of counsel to file a

                                                                         pro se



9541-9546. The trial court appointed counsel, who filed an amended PCRA




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rights. The trial court granted the PCRA petition and Appellant filed a nunc

pro tunc notice of appeal on March 27, 2014.      Appellant filed a Pa.R.A.P.

1925(a) concise statement on April 17, 2014, and on May 5, 2014, the trial



                                                                         une

18, 2013 opinion.

     Appellant raises the following issues for our review:


     I.    Whether there was sufficient evidence to sustain the
           verdicts of guilty as to all charges because the

           perpetrator of the crime beyond a reasonable doubt? See
           Commonwealth v. Pereria, 280 A.2d 623 (Pa. Super.
           1971)?

     II.   Whether there was sufficient evidence to sustain the
           verdicts of guilty as to all charges because the
           Commonwealth failed to prove beyond a reasonable doubt
           that [Appellant] utilized a weapon (handgun) in the
           commission of the crimes that would cause serious bodily
           injury?



     Appellant challenges the sufficiency of the evidence. When reviewing

such challenges, we are bound by the following:

           We must determine whether the evidence admitted at trial,
           and all reasonable inferences drawn therefrom, when
           viewed in a light most favorable to the Commonwealth as
           verdict winner, support the conviction beyond a reasonable
           doubt. Where there is sufficient evidence to enable the
           trier of fact to find every element of the crime has been
           established beyond a reasonable doubt, the sufficiency of
           the evidence claim must fail.


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           The evidence established at trial need not preclude every
           possibility of innocence and the fact-finder is free to
           believe all, part, or none of the evidence presented. It is
           not within the province of this Court to re-weigh the
           evidence and substitute our judgment for that of the fact-
           finder.    The Commonwealth's burden may be met 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. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

     In his first issue, Appellant argues that the Commonwealth failed to



perpetrators, to sustain his convictions.      Appell                      -13.

Specifically, Appellant claims that the DNA evidence relied upon by the

Commonwealth did not provide conclusive proof of identity, because the



being a match

                 Id. The trial court, however, disagreed, explaining:

           The statistical analysis provided by the Commonwealth
     witness who tested the sample conclusively established that
     [Appellant] had almost certainly worn the hat before it was
     found and seized by the police. The evidence of the DNA
     testing, and the statistical conclusions based thereon, was
     relevant in that it logically tended to make the alleged fact of
                                    the crime scene shortly after the

     reasonable inference that [Appellant] had taken part in the
     commission of the crime. To the extent that the evidence was
     allegedly rendered inconclusive due to the lack of evidence as to
     whether any other person had deposited DNA on the hat, any
     such inconclusiveness, if it existed, would not diminish the
     relevance of the DNA evidence or cause it to be inadmissible or

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        insufficient; rather, the alleged inconclusiveness would simply
        implicate the weight and persuasiveness of the DNA evidence,
        which are matters for the jury.

Trial Court Opinion, 6/18/13, at 5 (citations omitted).



                                                          Commonwealth v.

Crews

scene matches the DNA of an accused, it is at least evidence that the DNA

discovered at the crime scene is that of the accused.     If the DNA sample

matches the DNA of the accused and no one else, then it, of course,

conclusively establishes that the accused is the source of the DNA found at

the scene of the crime. This distinction is expressed in terms of statistical

                                                                 Id

in terms of the inferential conclusion to be drawn from DNA evidence in a

criminal trial   the accused as source of the DNA sample found at the crime

scene                                                                     Id.

The weight and persuasiveness of relevant and admissible DNA are properly

matters for the jury to determine. Id. at 403.

        Here, the jury found credible and persuasive the testimony of Julia

Brolley, a forensic scientist with the Pennsylvania State Police DNA

laboratory, who testified that she had been employed in DNA analysis since

2005, and explained the process by which she receives items, such as

articles of clothing, containing DNA samples, extracts cells from the items,


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and employs a chemical process to release the DNA to create a DNA profile.

N.T., 1/7/13, at 79-80. Ms. Brolley testified that when she conducted such

analysis on the DNA retrieved from the yellow baseball cap, and compared it

                                                                         Id. at 86-87. Ms.

Brolley further testified that the possibility of the DNA found on the baseball

cap belonging to someone else was statistically improbable with the odds

                                     -six      quintillion   for   the   African   American

                Id.2

       The victim, Ms. Hatfield, then testified that during the robbery, the

man wearing the yellow baseball cap was carrying a gun and demanded

money; Ms. Hatfield additionally identified the yellow hat on which



N.T., 1/7/13, 21-22, 63-64.          The jury, within its province as fact finder,

found credible and persuasive the testimony of Ms. Brolley and Ms. Hatfield;



presence during the commission of the crime.                   We will not disturb such

credibility determinations on appeal.            See Commonwealth v. Bourgeon,
____________________________________________


2
   The record does not reflect that Appellant objected at trial to the
Commonwealth faili
testimony, and to the extent Appellant raises such an evidentiary challenge
for the first time on appeal, it is waived. See Commonwealth v. Duffy,
                                                           to the trial court
are waived and cannot be raised for the first time on appeal. Pa.R.A.P.
302(a). In order to preserve an issue for review, a party must make a




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654 A.2d 555, 557 (Pa. Super. 1994) (the weight to the testimony of an

expert is for the jury to determine).

      In his second issue, Appellant argues that the Commonwealth failed to

establish that a firearm was used to threaten bodily injury, or that the victim

                                                               -16.     Appellant

asserts that the projectile retrieved from the crime scene was never

examined or forensically tested to conclusively determine it to be a bullet

fragment, and argues that the evidence was insufficient to establish that he

utilized a deadly weapon or one capable of causing injury.        Id.    For the

foregoing reasons, Appellant claims that the evidence was insufficient to

support his convictions for robbery or aggravated assault. We disagree.



injury), the Commonwealth was required to demonstrate that Appellant



injury intentionally, knowingly or recklessly under circumstances manifesting




the Commonwealth to demonstrate that he

intentionally or knowingly caus[ed] bodily injury to another with a deadly




with proof of such intent regardless of whether it was impossible to actually


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J-S50042-14


cause serious bodily injury. Likewise, aggravated assault can be found with

proof of such intent regardless of whether any serious bodily injury resulted.

Finally, aggravated assault can be found with proof of such intent even if no

                             Commonwealth v. Gruff, 822 A.2d 773, 777 (Pa.

Super. 2003) (citations omitted).



Commonwealth was required to prove that in the course of committing a

th



        To   sustain   the    conviction   for   robbery   (bodily   injury)   the

Commonwealth was required to demonstrate that in the course of



threaten[ed] another with or intentionally put[] him in fear of immediate



                                                           physical condition or




serious, permanent disfigurement, or protracted loss or impairment of the

funct                                            Id. A deadly weapon is defined



weapon and capable of producing death or serious bodily injury, or any other

device or instrumentality which, in the manner in which it is used or


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J-S50042-14


intended to be used, is calculated or likely to produce death or serious bodily

           Id.

      Again, Ms. Hatfield testified that during the robbery, the man wearing

the yellow baseball cap brandished a gun and demanded money.              N.T.,

1/7/13, 21-22.      When Ms. Hatfield informed him she did not have any

money, the man pointed the gun and fired. Id. at 24-25. Ms. Hatfield heard



can of mace at her assailants.    Id.   The two men then left the store, and

when Ms. Hatfield followed them, the man carrying the gun fired two more



door. Id. at 25-26.

      Thelma Crow, who was also in the Citgo at the time of the robbery,

testified that she was in the back of the store when she heard Ms. Hatfield

                                                -35. Ms. Crow then saw Ms.

Hatfield speaking to two men, one of whom was trying to get behind the

counter.    Id.   Ms. Crow took cover, and a few moments later, when she

heard the two men running away, she emerged to see the glass door



Id.

      We agree with the trial court that the foregoing evidence was sufficient

for the jury to conclude that Appellant pointed the gun toward Ms. Hatfield

and repeatedly fired it at her or in her direction.   Although the projectile


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from the gun did not strike Ms. Hatfield, it was discharged with enough force

to shatter a glass door, from which the jury could have reasonably inferred

that it was capable of causing injury.

      Viewed in the light most favorable to the Commonwealth, this

evidence, together with all reasonable inferences, was sufficient for the jury

to find that Appellant attempted to cause serious bodily injury to Ms. Hatfield

under circumstances manifesting extreme indifference to the value of her



Pa.C.S.A. § 2702(a)(1), and that he attempted to cause Ms. Hatfield bodily

injury with a deadly weapon, to sustain his conviction for aggravated assault

under 18 Pa.C.S.A. § 2702(a)(4). Additionally, this evidence was sufficient

to demonstrate that Appellant, in the course of committing a theft,

threatened or intentionally put Ms. Hatfield in fear of bodily injury and

serious bodily injury to sustain his robbery convictions under 18 Pa.C.S.A. §

3701(a)(1)(ii) and (iv).

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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J-S50042-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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