J-S53018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEZRE SMITH,
Appellant No. 2016 WDA 2013
Appeal from the Judgment of Sentence of July 9, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003815-2012
BEFORE: DONOHUE, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 25, 2014
Appellant, Dezre Smith, appeals from the judgment of sentence
entered on July 9, 2013 in the Criminal Division of the Court of Common
Pleas of Allegheny County, as made final by the denial of post-sentence
motions on November 25, 2013. We affirm.
At the conclusion of trial on April 11, 2013, a jury found Appellant
guilty of one count each of attempted homicide,1 aggravated assault,2
robbery,3 burglary,4 firearms not to be carried without a license,5 recklessly
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1
18 Pa.C.S.A. § 901(a).
2
18 Pa.C.S.A. § 2702(a)(1).
3
18 Pa.C.S.A. § 3701(a)(1)(ii).
4
18 Pa.C.S.A. § 3502(c)(1).
*Retired Senior Judge assigned to the Superior Court.
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endangering another person,6 and conspiracy to commit criminal homicide.7
On July 9, 2013, Appellant received an aggregate sentence of 180 to 360
months’ incarceration.
The trial court summarized the facts of this case as follows:
The charges in this case arose out of two separate home
invasion robberies. The victim, Timothy Anderson[,] testified
that[,] on July 24, 2011[,] an individual wearing a mask and
carrying a silver revolver entered the basement of his home.
The individual pointed the gun at him and, briefly, at his fiancée,
Shannon Vargo. The [individual] then walked over [to
Anderson’s] desk, removed cash he had there and then left.
[Although] Anderson followed a few seconds later, he did not see
where the robber fled. Throughout the robbery, Anderson was
only able to see the [individual’s] eyes. He did not recognize
him.
Approximately six (6) weeks later, on September 12, 2011,
Anderson was once again in his basement when two men
entered, one of them holding a silver revolver identical to the
one brandished by the robber on July 24, 2011. That individual
had the same mask covering his face as did the person who
robbed [Anderson] in July. There was another individual who
was not armed but who also had his face covered with a mask.
Once again, the robber headed straight for Anderson’s desk.
Anderson grabbed for the gun. As they struggled, the robber
discharged the weapon, slightly grazing Anderson’s leg. The
struggle over the gun continued and the mask slipped down to
[the] robber’s mouth and Anderson was able to see his face from
a distance of a few inches for a couple of seconds. The robber
was able, however, to fire the weapon two more times, striking
_______________________
(Footnote Continued)
5
18 Pa.C.S.A. § 6106(a)(1).
6
18 Pa.C.S.A. § 2705.
7
18 Pa.C.S.A. § 903(c).
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Anderson in the chest and abdomen, causing him to let go of the
weapon. The assailant and his accomplice then fled.
As a result of his injuries, [Anderson] was hospitalized for more
than three months. He was in a coma and/or unconscious from
the date of the incident through shortly before Thanksgiving.
When he awoke from his coma, [] Vargo showed him a
photograph of [Appellant] she had taken from [his] Facebook
page. She had apparently heard rumors on the street that
[Appellant] was involved in this incident and secured the
photograph to show to Anderson. She testified that she showed
[Anderson] the photograph and asked, “Do you know who this
is?” Anderson responded, “That’s the man who shot me.” This
information was relayed to the police who, approximately a week
later, came to [Anderson’s] hospital [room] and showed him a
photographic array of eight (8) individuals, one of whom was
[Appellant]. [Anderson] immediately pointed to [Appellant] and
stated that he was the person who had robbed him.
Anderson admitted that he sold marijuana from his home. He
said that he kept the marijuana and his cash in the desk drawer
in the basement. He testified that he sold marijuana from his
home to Matt Potter on several occasions. Potter was present in
his basement and saw him go to the desk, put the money in it
and then retrieve the marijuana.
Anderson related that Potter had called him on July 23, 2012,
the day before the first robbery, and asked if Anderson could get
him a quarter pound of marijuana. Anderson told him that he
would not be available that night but would call him later and tell
him when he could pick up the marijuana. Later that night,
[Anderson] called Potter and left a voice mail. Potter called him
the next day, the 24th, and said that he wanted to buy an ounce
and Anderson told him it would cost one hundred and twenty
dollars. Potter never showed up to buy the marijuana.
After [Appellant] was identified by Anderson, police obtained a
warrant for his residence. While executing that warrant, they
learned that [] Potter was [Appellant’s] roommate and that they
had known each other for years. Potter also admitted to the
officers that he had purchased marijuana from Anderson on
several occasions, including in July 2011.
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[Appellant] testified himself and denied any involvement in
either robbery. He claimed that on September 12, 2011 he was
with [] Potter in the afternoon into the evening and then
coaching a youth football team that night. He also presented
alibi evidence. George Hazaga, who coached that football team
with [Appellant], testified that football practice began between
5:00 p.m. or 6:00 p.m. [O]n September 12, 2011, practice
began at approximately 5[:00 p.m.] It lasted approximately two
(2) hours. After practice, Hazaga, [Appellant], Hazaga’s son,
another individual by the name of Eric and his son stayed at the
field until approximately 9:00 p.m., cleaning and organizing
equipment. Hazaga testified that he agreed to give [Appellant] a
ride home and that they left the field in White Oak Borough at
approximately 9:00 p.m., arriving at the defendant’s McKeesport
residence at around 9:15 p.m. When [Appellant] realized he did
not have a key, they stayed with him and talked in the car for
between fifteen (15) and twenty (20) minutes. After [Appellant]
left [the] vehicle, Hazaga left the area. Hazaga also testified
that when he was interviewed by the detectives, he mentioned
another night when [Appellant] was present with him and the
teen attending a bonfire. He said, however, that this did not
take place on September 12th.
[Appellant] also called Eric Jenkins, who was a landscaper [and
Appellant’s employer.] Jenkins said that on September 12th, he
was with his mother for dinner at approximately 6:00 p.m. and
stayed there until approximately 9:15 p.m. He arrived back at
his mother’s house between 9:30 p.m. and 10:00 p.m. He said
that when he pulled up to her house, [Appellant], George
Hazaga and George’s son, were sitting in a red minivan outside
his mother’s home. [Appellant] was living in an apartment at
Jenkins’ mother’s residence and [he] explained to Jenkins that
he had not been able to get in because the door was locked.
They let [Appellant] into the apartment.
The [Commonwealth charged Appellant with various offenses
arising out of the two] home invasion robberies which occurred
on July 24, 2011 and September 12, 2011. For the July 24
incident, he was charged with one count each of [r]obbery,
[b]urglary, [c]arrying a [c]oncealed [w]eapon; [t]heft, [c]riminal
[c]onspiracy; and Violation of Uniform Firearms Act – [person
n]ot to [p]ossess [f]irearm. In connection with the September
12 incident, he was charged with one count each of [c]riminal
[a]ttempt – [h]omicide; [a]ggravated [a]ssault; [r]obbery;
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[b]urglary; Violation of Uniform Firearms Act – [c]arrying a
[f]irearm [w]ithout a [l]icense; [r]eckless [e]ndangerment;
[c]riminal [c]onspiracy; and Violation of the Uniform Firearms
Act – [person n]ot to [posses] a [f]irearm.[] [Appellant waived
his right to a jury trial as to the persons not to possess a firearm
charges and agreed to allow the court to decide those charges.]
At the conclusion of the trial, the jury acquitted [Appellant] of all
charges related to the July 24, 2011 incident, but found him
guilty of the remaining charges. The [c]ourt acquitted
[Appellant] of the two [persons not to possess a firearm]
charges. [Appellant] filed a written [p]ost[-t]rial [m]otion
arguing that the verdict was against the weight of the evidence.
This [m]otion was denied. At sentencing, [Appellant] made an
oral [m]otion for [e]xtraordinary [r]elief, once again challenging
the weight and sufficiency of the evidence. This [m]otion was
likewise denied. The [trial c]ourt then sentenced [Appellant] to
[] an aggregate sentence of 180 to 360 months [in prison].
[Appellant] filed a [timely n]otice of [a]ppeal and, pursuant to
[court o]rder, a [concise s]tatement of [e]rrors [c]omplained of
on [a]ppeal. [This appeal followed.]
Trial Court Opinion, 3/27/14, at 1-8 (footnote omitted).
Appellant raises the following claims for our consideration:
Was the identification evidence insufficient beyond a reasonable
doubt when the victim, who was under the influence of drugs
and had just been shot, made an identification based on briefly
viewing part of the perpetrator’s face as they fought over a gun?
Did the trial court abuse its discretion in finding that the verdict
was not against the weight of the evidence since [Appellant] had
an alibi that was supported by multiple witnesses and the only
evidence connecting the defendant to this crime was the victim’s
questionable identification?
Appellant’s Brief at 6.
In his first claim, Appellant challenges the sufficiency of the evidence
introduced by the Commonwealth to establish that he committed the
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offenses with which he was charged. Specifically, Appellant argues that
Anderson’s testimony was the only evidence offered to connect him to the
charges in this case and that Anderson’s testimony was legally insufficient
because he was under the influence of drugs, had just been shot, and had
only a brief opportunity to view the assailant when the two fought over a
gun. Appellant notes the lack of physical evidence (e.g. a gun, bandana, or
clothing) and DNA that connected him to the charged offenses. Appellant
also alleges that Anderson’s testimony was insufficient to prove his
involvement beyond a reasonable doubt given the testimony that supported
Appellant’s alibi defense. This claim merits no relief.
We review Appellant’s sufficiency challenge under a familiar standard
and scope of review:
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.
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Commonwealth v. Karns, 50 A.3d 158, 161 (Pa. Super. 2012) (case
citation omitted), appeal denied, 65 A.3d 413 (Pa. 2013).
Within the context of a weight of the evidence claim raised in
Appellant’s concise statement, the trial court rejected Appellant’s challenge
to the identification evidence put forward by the Commonwealth. The trial
court stated:
[Anderson] had an opportunity to see [Appellant’s] face, up
close during the robbery. He was shown a photograph when he
awoke from his coma and was asked simply if he knew who it
was. He responded, without any prompting, according to the
evidence presented, that it was the man who shot him. That
testimony, standing alone, was sufficient to support this verdict.
[Appellant’s involvement] was corroborated through the
circumstantial evidence that placed his roommate in
[Anderson’s] home shortly before the robbery [and credited the
roommate with knowledge about where Anderson kept his
money.] The fact that [Appellant] was able to go straight to
where the money was kept is circumstantial evidence that
someone he knew had been there and [saw Anderson] access
money from the desk.
[Appellant’s] alibi evidence was not such that [it] rendered the
verdicts [unfounded]. His alibi was not one that made it
impossible for him to have committed these crimes. The
recollections of time were, understandably, vague. At best, the
alibi evidence placed [Appellant] with others up until
approximately 9:45 p.m. on the night that the robbery occurred.
The evidence also established that the distance between
[Appellant’s] and [Anderson’s] homes was not so far that he
could not have driven to [Anderson’s] home and committed the
robbery after George Hazaga and Eric Jenkins had left.
[Anderson’s] testimony as to when the robbery occurred placed
it somewhere around 10:00 p.m. In light of the eyewitness
identification by the victim, the corroboration offered by the
circumstantial evidence showing that [Appellant’s] roommate
would have known where [Anderson] kept his money and
marijuana, coupled with the weakness of [Appellant’s] alibi,
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certainly means that this verdict [was supported by sufficient
evidence].
Trial Court Opinion, 3/27/14, at 11-12.
For the reasons expressed by the trial court, we conclude that the
Commonwealth’s identification evidence was not so weak and inconclusive
that, as a matter of law, no probability of fact could be drawn from the
combined circumstances. Hence, Appellant is not entitled to relief on his
sufficiency challenge.
In his second claim, Appellant asserts that the trial court abused its
discretion in denying his request for a new trial on grounds that the verdict
was against the weight of the evidence.8 In developing this claim, Appellant
again targets the Commonwealth’s evidence that he committed the charged
offenses and repeats many of the allegations leveled in support of his
sufficiency challenge. Appellant claims that Anderson’s testimony was
vague, uncertain, and insufficient to rebut Appellant’s alibi. This claim, too,
merits no relief.
When reviewing a challenge to the weight of the evidence, our
standard of review is well established:
[A] verdict is against the weight of the evidence only when the
jury's verdict is so contrary to the evidence as to shock one's
sense of justice. It is well established that a weight of the
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8
Appellant properly preserved his challenge to the weight of the evidence by
raising his claim before the trial court in a post-sentence motion. See
Pa.R.Crim.P. 607(A).
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evidence claim is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial
court is to determine that notwithstanding all the evidence,
certain facts are so clearly of greater weight that to ignore them,
or to give them equal weight with all the facts, is to deny justice.
A motion for a new trial on the grounds that the verdict is
contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict; thus the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner.
Significantly, in a challenge to the weight of the evidence, the
function of an appellate court on appeal is to review the trial
court's exercise of discretion based upon a review of the record,
rather than to consider de novo the underlying question of the
weight of the evidence. In determining whether this standard
has been met, appellate review is limited to whether the trial
judge's discretion was properly exercised, and relief will only be
granted where the facts and inferences of record disclose a
palpable abuse of discretion. It is for this reason that the trial
court's denial of a motion for a new trial based on a weight of
the evidence claim is the least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
quotations and case citations omitted). Although an appellate court
confronted by a weight of the evidence claim owes considerable deference to
the determinations of the trial court, such deference is not limitless. As our
Supreme Court has explained:
The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions. Discretion is
abused where the course pursued represents not merely an error
of judgment, but where the judgment is manifestly unreasonable
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or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (case citations
omitted).
In this case, the court rejected Appellant’s request for a new trial
predicated upon the contention that the verdict was against the weight of
the evidence. The court based its decision on the reasons set forth above,
as well as other determinations articulated in its opinion. Our review of the
record confirms that the trial court properly exercised its discretion and that
the verdict was not so contrary to the evidence as to shock one's sense of
justice. For these reasons, we conclude that no relief is due on Appellant’s
weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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