Opinion
J-S74021-18 No. 870 EDA 2017
03-15-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. TIMOTHY MILLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009273-2012 BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ. MEMORANDUM BY STABILE, J.:
Appellant Timothy Miller appeals from the March 18, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following his jury convictions for three counts of robbery, one count of conspiracy, and one count of aggravated assault. Upon review, we affirm.
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), and 2702(a), respectively.
The facts and procedural history of this case are undisputed. Following an armed robbery of three women in a hair salon, Appellant was arrested, and charged with, inter alia, the foregoing crimes. Summarizing the trial testimony, the trial court found:
Ms. Naadirah Fate, testified that on the afternoon of May 18, 2012, she was working at the Zoo Hair Salon located at 60th and Spruce in the City and County of Philadelphia, when a woman robbed her and two other occupants at gun point. Prior to the robbery, at approximately 2:45 p.m., Ms. Fate was alone in the shop with [Appellant], who was cleaning at the time. [Ms. Fate was on the phone with a car salesman whom she told her about
the $2000.00 she had to purchase a car. Appellant was close to Ms. Fate in the same section of the salon.] After [Ms. Fate got] off the phone with the car salesman, [Appellant] indicated to her that he knew someone who sold cars and left the shop. Shortly thereafter, three people, her cousin Malisha, her client Robin and Robin's five year old son, entered the shop. Shortly thereafter, a woman (later identified as Ms. Javonna Johnson) dressed in a "hoodie" and "big baggie pants" entered the salon demanding to speak to the owner. Ms. Fate called the current owner on her own cell phone and let Ms. Johnson talk to her.
At some point, Ms. Johnson pulled a gun from her hoodie and ordered everybody to slide their pocket books to the left, as well as their phones. Ms. Fate testified that Malisha complied, surrendering a denim purse. When Ms. Fate was unable to surrender a pocketbook, because she had just sold it to raise the money to purchase a car, Ms. Johnson cocked the gun, pointed it at her leg, and demanded: "Where's the money?" In her statement to Philadelphia Police Detective Campbell, she stated that Ms. Johnson finished her conversation with the owner; "Then she threw me back my phone, said "I heard you trying to buy a car today, where's the money at?" Ms. Johnson then pulled the trigger. Fortunately, the gun misfired. A struggle ensued, during which Ms. Johnson took the $2000.00 car money from Ms. Fate, which she had previously hidden in her pants.
Ms. Fate testified that as Ms. Johnson was struggling to get her money, [Appellant] opened the front door saying to Ms. Johnson: "Let's go." She then gathered everything up, including Malisha's pocketbook, Ms. Fate's money and the three women's cell phones, and fled.
Ms. Fate followed Ms. Johnson out of the shop and pursued her on foot. When they entered a nearby alleyway, [Appellant] pushed her to the ground, impeding her pursuit. She was then picked up by Malisha and continued the pursuit in her car. They followed Ms. Johnson to 5911 Irving Street, where she saw both [Appellant] and Ms. Johnson enter the house. She also testified that when the police arrived, she pointed out the house to them and when one of the officers knocked on the front door of the house, [Appellant] opened it.
Philadelphia Police Officer Damian Wyche testified that at approximately 2:30 p.m. on May 18, 2012, he was on routine patrol with his partner, Officer Clara Martinez, when they received a radio call for robbery in progress, a person with a gun. They were the first officers on the scene and were led to 5911 Irving Street by Ms. Fate, which Officer Wyche described as a corner property with an alley running behind it. Once there, he went to the back of the premises and his partner remained in the front. He saw [Appellant] and Ms. Johnson come into the backyard holding various objects in their hands, one of which he believed to be a gun. When he called out to them: "Let me see your hands,"
they threw objects into the next yard and retreated back into the house.Trial Court Opinion, 11/30/17, at 4-7 (record citations, footnotes and some quotation marks omitted). The jury found Appellant guilty of conspiracy, three counts of robbery and aggravated assault. On March 18, 2015, the trial court sentenced Appellant to a concurrent term of five to ten years' imprisonment for the robbery convictions. With respect to conspiracy and aggravated assault, the trial court sentenced Appellant to two and one-half to five years' imprisonment for each conviction, to run consecutively with his robbery sentence. Taken together, the trial court sentenced Appellant to ten to twenty years in prison.
He testified that these objects were eventually recovered by Officer Ronald Green, who testified that, at Officer Wyche's direction, he recovered a black iPhone, a black iPod, and [] a Smith and Wesson Desert Eagle loaded with 12 rounds and one chambered. Ms. Fate identified the gun as the one used in the robbery.
Officer Clara Martinez testified that as she and her partner, Officer Damian Wyche, arrived at the hair salon, Ms. Fate told them that she had been robbed and led them 5911 Irving Street, where they both got out of their patrol car. She stayed in front as Officer Wyche went around the rear of the property. As she knocked on the front door, she could hear a lot of commotion from inside the house. When [Appellant], whom she described as sweating profusely, open [the door], he told her: "There's no one else here." Not believing him, she handcuffed him before entering. Once inside, Ms. Johnson was discovered in the basement.
On March 24, 2015, Appellant filed post-sentence motions, which were deemed denied by operation of law under Pa.R.Crim.P. 720(B)(3) on July 23, 2015. Appellant did not file a direct appeal.
On January 22, 2016, Appellant pro se filed a petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46, seeking the nunc pro tunc reinstatement of his direct appeal rights. On February 10, 2017, with the Commonwealth's concurrence, the PCRA court granted Appellant the requested relief, reinstating his direct appeal rights. Appellant timely appealed to this Court. Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue for our review: "Was there insufficient evidence to convict Appellant Timothy Miller convictions of aggravated assault, conspiracy, and three counts of robbery?" Appellant's Brief at 3 (unnecessary capitalizations omitted) (sic).
As the Commonwealth points out, and we agree, Appellant has abandoned his sufficiency of evidence claim with respect to his convictions for robbery and aggravated assault because he failed to include it in the argument section of his brief, much less develop it in any coherent fashion. As a result, we cannot meaningfully review it. See Pa.R.A.P. 2119(a) (stating that the argument section of the parties' briefs "shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctly displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent."); Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009), ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.") (citation omitted), cert. denied , 562 U.S. 906 (2010); see also Commonwealth v. Murchinson , 899 A.2d 1159, 1160 (Pa. Super. 2006) (deeming appellant's claims waived under Pa.R.A.P. 2119(a) because he did not develop meaningful argument with specific references to relevant case law and to the record to support his claims); Commonwealth v. Heilman , 867 A.2d 542, 546 (Pa. Super. 2005) (recognizing that failure to provide "such discussion and citation of authorities as are deemed pertinent" may result in waiver); Commonwealth v. Cornelius , 856 A.2d 62, 77 (Pa. Super. 2004) (declining to review appellant's claim where there was limited explanation and development of the argument). Even if his sufficiency claim is not abandoned, he still is not entitled to relief based on the reasons outlined in the trial court's November 30, 2017 opinion. See Trial Court Opinion, 11/30/17, at 13-15.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence 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 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. Antidormi , 84 A.3d 736, 756 (Pa. Super. 2014), appeal denied , 95 A.3d 275 (Pa. 2014).
The Crimes Code defines conspiracy as follows.
(a) Definition of conspiracy.--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:
(1) 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; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(b) Scope of conspiratorial relationship.--If a person guilty of conspiracy, as defined by subsection (a) of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, to commit such crime whether or not he knows their identity.18 Pa.C.S.A. 903(a), (b), (c) and (e).
(c) Conspiracy with multiple criminal objectives.--If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
. . . .
(e) Overt act.--No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
After careful review of the record and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant's sufficiency claim relating to his conviction for conspiracy. See Trial Court Opinion, 11/30/17, at 9-13. Accordingly, we affirm Appellant's judgment of sentence. We further direct that a copy of the trial court's November 30, 2017 opinion be attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/15/19
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