Opinion
J-S62009-19 No. 1601 WDA 2018
02-11-2020
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA N. CAMBRIC Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 17, 2018
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001269-2014 BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY PANELLA, P.J.:
Joshua N. Cambric appeals from the judgment of sentence entered in the Cambria County Court of Common Pleas on July 17, 2018 following his conviction for first degree murder and related charges for his involvement in a 2014 fatal shooting.
On March 30, 2014, Tony Phillips was shot and killed in the parking lot of a bar in Johnstown, Cambria County, while sitting in the driver's seat of his sister's car. At trial, the Commonwealth presented circumstantial evidence to establish that Cambric, Keith Reed, and Jeremy Woodard had formulated and carried out a plan to kill Tony Phillips. This evidence consisted of multiple witnesses and video surveillance footage from multiple locations.
Phillips' sister, Tanya Phillips, testified that Reed called her residence looking for her brother on the day of the murder. She told Reed that her brother was not home, but offered suggestions on where he might be. Tanya had loaned her brother her golden tan colored Chevrolet Malibu earlier that day. Phillips' aunt testified that Reed came to her sister's house looking for Phillips and convinced Phillips to go have a drink with him.
The owner of the bar where the shooting occurred testified that while he was getting in his car to leave the bar that night he saw a gold-colored vehicle pull into the parking lot. He observed a black male, who he identified as Reed get out of the passenger side of the gold car and go into the bar. He then saw a different black male, wearing glasses and gray cargo pants, come out and fire two shots from a handgun through the driver's door window of the gold car. The shooter then walked to a black SUV that was waiting for him. The owner identified Cambric as the shooter in court.
He further testified that Reed was a regular patron of the bar.
After local dispatch advised police to be on the lookout for a black SUV in connection with the shooting, they effectuated a stop of a vehicle matching the description in the parking lot of a gas station. A passenger alighted from the SUV before the driver attempted to flee by driving away. The driver, identified as Woodard, was apprehended shortly thereafter. The passenger was tracked to a local motel, were he was found in a room, having checked in approximately fifteen minutes before police arrived. An officer positively identified Cambric as the passenger who fled from the black SUV.
Video evidence from the gas station showed Cambric exiting the black SUV and leaning down between the pumps, the black SUV departing, the police cruiser in pursuit, and Cambric walking toward the motel. Officers later located a firearm lodged between the gas pumps where Cambric had leaned down. Scientific testing and analysis established that all bullets recovered had been fired by the firearm recovered at the gas station.
The Commonwealth sought to try the men jointly. However, the trial court denied the Commonwealth's request. This Court quashed the Commonwealth's appeal of the denial, and our Supreme Court denied review. After several scheduling issues, trial was scheduled for March 2017.
Cambric filed a motion to dismiss the charges, asserting that his right to a speedy trial had been violated. After a hearing, the trial court denied the motion. Cambric then filed a motion seeking the recusal of the Cambria County District Attorney's office, which the trial court granted. The Office of the Attorney General assumed the responsibility for the case, and after trial, the jury convicted Cambric of first degree murder, conspiracy to commit murder, two counts of aggravated assault, receiving stolen property, and tampering with physical evidence.
On July 17, 2018, Cambric was sentenced to life imprisonment for first degree murder, a consecutive five to ten years' incarceration for receiving stolen property, and a consecutive six months to two years' incarceration for tampering with or fabricating physical evidence. The trial court subsequently amended the sentence on the charge of receiving stolen property to thirty-three to one-hundred and twenty months' incarceration.
The charges of conspiracy to commit criminal homicide and aggravated assault merged with the charge of first degree murder for sentencing.
Cambric filed timely post-sentence motions, which were denied after a hearing. This timely appeal followed.
In his first issue on appeal, Cambric challenges the sufficiency of the evidence to sustain all charges. Specifically, in his Rule 1925(b) statement, he contends the evidence was wholly inconsistent and speculative because the convictions were based solely on circumstantial evidence and the eyewitness' testimony was conflicting as to their identification of the perpetrator. Cambric is not challenging the sufficiency of the evidence to support any of the specific legal definitions of his convictions. Rather, he is challenging the sufficiency of the evidence to establish that he was the person who committed the crimes.
Our standard of review for a challenge to the sufficiency of the evidence is to 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 crimes charged is established beyond a reasonable doubt. See Commonwealth v. Dale , 836 A.2d 150, 152 (Pa. Super. 2003). "The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Bruce , 916 A.2d 657, 661 (Pa. Super. 2007) (citation omitted).
"The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Id. (citation omitted). "As an appellate court, we do not assess credibility nor do we assign weight to any of the testimony of record." Commonwealth v. Kinney , 863 A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Thus, we will not disturb the verdict "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." Bruce , 916 A.2d at 661 (citation omitted).
The trial court, in its opinion, has thoroughly reviewed this claim and disposed of the argument on the merits. We have reviewed the parties' briefs, the relevant law, the certified record, and the trial court's well-written opinion. The trial court's findings of fact and conclusions of law comprehensively dispose of Cambric's first issue on appeal, with appropriate references to the record and without legal error. We therefore adopt its reasoning and affirm on its basis. See Trial Court Opinion, 2/5/2019. It is clear there is overwhelming evidence in support of the verdict.
Furthermore, although Cambric phrased this claim as a challenge to the sufficiency of the evidence, we find his claim to be more properly categorized as a challenge to the weight of the evidence. Cambric's argument focuses almost exclusively on his contention that the testimony was contradictory and inconsistent. This is a challenge not to the sufficiency of the evidence, but to its weight. See Commonwealth v. Wilson , 825 A.2d 710, 713-714 (Pa. Super. 2003) ("A sufficiency of the evidence review, however, does not include an assessment of the credibility of the testimony offered by the Commonwealth.") As Cambric has raised a separate weight claim in his second issue on appeal, we will address the issue on its merits.
While challenges based on inconsistent testimony generally implicate the weight of the evidence, our Supreme Court has made an exception to the general rule that the finder of fact is the sole arbiter of the facts where the testimony is so inherently unreliable that a verdict based upon it could amount to no more than surmise or conjecture. Commonwealth v. Karkaria , 625 A.2d 1167, 1170 (Pa. 1993). Instantly, we do not find that the verdict was based on conjecture or that the testimony was so inherently unreliable as to render the verdict unsupportable.
In his challenge to the weight of the evidence supporting the jury's verdict, Cambric raises the same arguments he made in his sufficiency argument, specifically that the eyewitness testimony was conflicting. Cambric contends the jury's verdict based on solely circumstantial evidence was so contrary to the evidence that it constitutes a miscarriage of justice and requires the grant of a new trial.
We do not review challenges to the weight of the evidence de novo on appeal. See Commonwealth v. Rivera , 983 A.2d 1211, 1225 (Pa. 2009). Rather, we only review the trial court's exercise of its discretionary judgment regarding the weight of the evidence presented at trial. See id. We may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when "the figure of Justice totters on her pedestal," or when "the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience." Commonwealth v. Davidson , 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted).
When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review.Commonwealth v. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009) (citations omitted).
Cambric mainly takes issue with the eyewitness's testimony regarding the color of the perpetrator's pants. See Appellant's Brief, at 28-29. We have to agree with the trial court that Cambric's challenge is simply a "mere conflict in testimony" and does not constitute grounds for a new trial. Further, we agree with the trial court that the evidence in this case was voluminous, including not only the eyewitness testimony, but additionally video evidence documenting nearly every aspect of Cambric's actions throughout the day. The video evidence alone, if believed by the fact finder, was enough to convict Cambric. Accordingly, we find Cambric's weight claim is without merit.
Next, Cambric contends the trial court abused its discretion by denying his oral motion to recuse defense counsel for a conflict of interest.
A defendant cannot prevail on a conflict of interest claim absent a showing of actual prejudice. [T]his Court [has held] that while it is true that prejudice is presumed when counsel is burdened by an actual conflict of interest, this is only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.Commonwealth v. Spotz , 896 A.2d 1191, 1231-32 (citations and internal quotation marks omitted).
Cambric takes issue with the fact that defense counsel had previously prepared estate planning documents for a testifying detective from the Johnstown police department. Counsel also probated the detective's parents' estates. Finally, counsel had an informal discussion with the detective regarding a civil suit shortly before trial, but testified that no attorney client relationship had been created by this conversation.
Here, Cambric has failed to demonstrate that counsel "actively represented conflicting interests." Id. Under these circumstances, we conclude that this is not a case of concurrent representation because, as alleged by Cambric, his concern regards trial counsel's previous representation of a Commonwealth witness in cases that were unrelated to the instant matter, and that had been concluded prior to Cambric's trial. Because this case involves successive and not dual representation, Cambric must demonstrate he was prejudiced by any potential conflict of interest. See Commonwealth v. Cousar , 154 A.3d 287, 310 (Pa. 2014); see also Commonwealth v. Karenbauer , 715 A.2d 1086, 1094 (Pa. 1998) (holding that "[a] defendant cannot prevail on a conflict of interest claim absent a showing of actual prejudice").
Cambric has failed to demonstrate the requisite prejudice as he provides no nexus between trial counsel's previous representation of the Commonwealth witness and counsel's performance at Cambric's trial. His concerns seem to be merely speculative. Additionally, the trial court took precautionary measures to protect Cambric's due process rights, specifically engaging in a colloquy with Cambric to ensure a full and fair opportunity to cross-examine the witness. Cambric was given the opportunity to ensure trial counsel asked all questions Cambric wanted posed to the witness and that trial counsel did not ask any questions Cambric did not want posed. Cambric offers no evidence that trial counsel restricted his cross-examination of the Commonwealth witness because he was laboring under a conflict of interest. Rather, Cambric specifically testified that he was satisfied with trial counsel's cross-examination.
The trial court made the decision to deny Cambric's motion to remove trial counsel based on an alleged conflict of interest after hearing testimony and argument from both sides. The trial court's conclusion that Cambric failed to demonstrate a conflict of interest is sound. Accordingly, we find Cambric is not entitled to relief. See Commonwealth v. Spotz , 896 A.2d 1191, 1232 (Pa. 2006) (rejecting claim based on counsel's representation of a client which had terminated prior to his appointment to represent the defendant because the defendant offered nothing more than bald assertions, with no evidence to suggest that counsel's conduct was due to the alleged conflict of interest).
Next, Cambric contends the trial court abused its discretion by denying his motions for dismissal of charges on Pa.R.Crim.P. 600 speedy trial grounds.
Our scope and standard of review on this issue are as follows.
Our standard of review relating to the application of Rule 600 is whether the trial court abused its discretion. Our scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing and the findings of the trial court. We must view the facts in the light most favorable to the prevailing party.Commonwealth v. Robbins , 900 A.2d 413, 415 (Pa. Super. 2006) (citation omitted).
Additionally, when considering the trial court's ruling, this Court is not permitted to ignore the dual purpose behind Rule [600]. Rule [600] serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. However, the administrative mandate of Rule [600] was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.Commonwealth v. Hunt , 858 A.2d 1234, 1239 (Pa. Super. 2004) (en banc) (citation omitted; brackets in original).
Rule 600 "provides for dismissal of charges only in cases in which the defendant has not been brought to trial within the term of the adjusted run date, after subtracting all excludable and excusable time." The adjusted run date is calculated by adding to the
mechanical run date, i.e., the date 365 days from the complaint, both excludable time and excusable delay. "Excludable time" is classified as periods of delay caused by the defendant. "Excusable delay" occurs where the delay is caused by circumstances beyond the Commonwealth's control and despite its due diligence. "Due diligence is a fact-specific concept that must be determined on a case-by-case basis. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth." Due diligence includes, inter alia, listing a case for trial prior to the run date, preparedness for trial within the run date, and keeping adequate records to ensure compliance with Rule 600. Periods of delay caused by the Commonwealth's failure to exercise due diligence must be included in the computation of time within which trial must commence.Commonwealth v. Moore , 214 A.3d 244, 248-249 (Pa. Super. 2019) (citations omitted).
"Once a violation of Rule 600 has been established ... the inquiry becomes whether the Commonwealth exercised due diligence in bringing [a defendant] to trial and if the circumstances occasioning the postponement were beyond the control of the Commonwealth." Commonwealth v. Kearse , 890 A.2d 388, 392 (Pa. Super. 2005). "The Commonwealth ... has the burden of demonstrating by a preponderance of the evidence that it exercised due diligence." Commonwealth v. Cole , 167 A.3d 49, 71 (Pa. Super. 2017) (citation and quotation marks omitted).
In its opinion, the trial court fully stood by its order dated February 1, 2017, and its opinion dated March 9, 2017. See Trial Court Opinion, 2/12/2019, at 3. In that prior opinion, the trial court thoroughly and thoughtfully summarized and addressed Cambric's claims concerning his Rule 600 challenges, set forth the relevant law, and determined that, while it is regrettable that the whole process took so long, the Commonwealth had nevertheless exercised due diligence in bringing Cambric's case to trial. See Trial Court Opinion, 3/9/2017. We affirm based on the trial court's sound, and comprehensive, rationale with regard to this issue. See id.
In his last issue on appeal, Cambric simply makes a blanket argument that the trial court erred in denying his post sentence motions for the reasons raised in the prior four issues. As we have already addressed each issue separately, we need not address them again.
As we find none of Cambric's issues on appeal merit relief, we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/11/2020
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