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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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,
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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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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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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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