Com. v. Zawierucha, J.

J-S49025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOHN MICHAEL ZAWIERUCHA,

Appellant No. 89 MDA 2015

Appeal from the Judgment of Sentence entered September 3, 2014,
in the Court of Common Pleas of Franklin County,
Criminal Division, at No(s): CP-28-CR-0000543-2014

BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 07, 2015

John Zawierucha (“Appellant”) appeals from the the judgment of

sentence imposed after a jury convicted him of robbery, conspiracy to

commit robbery, and theft by unlawful taking.1 We affirm.

The trial court recounted the factual background as follows:

The above-captioned charges arose out of events that
transpired on April 13, 2014, at the Sunoco gas station in
Greencastle, Pennsylvania. The victims, Michele Meadows and
Alice Watkins, were working together at the Sunoco gas station
as clerks at or around 9:15 or 9:30. At that time, three men
entered the store, two of which had bandanas over their faces.
The first man, Deonta Williams, jumped over the counter and
pointed a gun at the victims. He threatened to kill the clerks if
they did not open the safe. While this was occurring, the second
suspect, [Appellant], walked around the counter and began
____________________________________________

1
18 Pa.C.S. §§ 3701, 903, and 3921.
J-S49025-15

putting money and Newport cigarettes inside a pink and gray
duffel bag. The third suspect, Trevon Walker, then took the
clerks to another part of the store and told them to relax and
that everything would be over shortly. The three suspects
eventually fled with the cash and cigarettes. The victims
subsequently called police to report the robbery.

Follow[ing] their departure from the gas station, the three
suspects were picked up by two young women in a black Honda
Civic. The two young women were later identified as Tiffani
Robey and Brittany Johnson. The black Honda Civic was initially
followed by two witnesses, Richard Rhodes and Lori Harbaugh,
who testified they had earlier noticed the two young women
parked in a suspicious location in relation to the Sunoco gas
station. (N.T. 8/4/2014 p. 107). Mr. Rhodes testified that upon
seeing the three male suspects running towards the car, one
with a duffel bag in hand, he suspected a potential robbery and
followed the suspects at a high rate of speed. Id. at 88.
Although the suspects eventually lost Mr. Rhodes and Ms.
Harbaugh, they were able to get a tag number of the black
Honda Civic and conveyed it to police. Id. at 89.

Trooper Paul Decker testified that he assisted Trooper
Dave Rush in investigating this incident and met with Mr. Rhodes
and administered him a photo lineup. Id. at 111-112. Mr.
Rhodes was able to identify one of the two females in the car,
Tiffany Robey. Id. at 115. Tiffany Robey and Brittany Johnson
were later arrested and spoke with police a total of three (3)
times. Both women testified at trial that they fabricated an
original story implicating three other men, names they both
made up. (N.T. 8/5/2014 p. at 20, 47-48). None of the names
provided was that of [Appellant], Deonta Williams, or Trevon
Walker. Eventually, both women testified they decided to accept
responsibility and as a result turned the real culprits in. Id. at
20, 49. Both told police they had driven [Appellant], Deonta
Williams, and Trevon Walker to the Sunoco in order to commit
the robbery and then picked up the men and proceeded to flee
the scene. The women testified that they subsequently drove to
a Red Roof Inn in Germantown, Maryland, where the five (5)
individuals distributed the cash and cigarettes. Id. at 17, 46.
Trevon Walker also testified at trial that [Appellant] participated
in the robbery and was the suspect identified as carrying the
duffle bag. (N.T. 8/4/2014 p. 119-39). Finally, evidence
presented at trial confirmed that [Appellant’s] cell phone was in
fact near the Sunoco gas station at or around the time of the

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J-S49025-15

robbery. (N.T. 8/5/2014 p. 61-70). Tiffani Robey testified that
[Appellant] had given her the phone on the night before the
robbery but that this was not uncommon and that she was
present with [Appellant] while she had his phone. Id. at 13-14.

[Appellant] attempted to offer an alibi defense at trial and
called three witnesses in support. The first was Stephanie
Champagne, [Appellant’s] Mother. Ms. Champagne testified that
she dropped [Appellant] off at a McDonalds in Rockville,
Maryland at around 8:10 pm on the night of the alleged robbery
after picking him up from an AA meeting. (N.T. 8/5/2014 p. 99-
100). Ms. Champagne testified that [Appellant] was with Trevon
Walker at the time. Id. at 100. Kenneth Wilder, [Appellant’s]
cousin, also testified that he saw and briefly met with [Appellant]
and Trevon Walker at McDonalds on April 13, 2013, at around
8:15 in the evening. Id. at 104-05. Mr. Wilder further testified
that he dropped [Appellant] and Trevon Walker off at
[Appellant’s] nearby sober house at around 8:30. Id. Finally,
Katelyn Coutu, Kenneth Wilder’s girlfriend, testified that she was
present in the car when [Appellant] and Trevon Walker were
dropped off at [Appellant’s] sober house. Id. at 120-21. The
crux of [Appellant’s] alibi defense was that given the amount of
time it takes to travel to the Sunoco from his sober house, he
could not possibly have participated in the robbery. Ultimately,
the jury found this unpersuasive and convicted him on the
aforementioned counts.

Trial Court Opinion, 12/19/14, at 2-4.

On September 3, 2014, the trial court sentenced Appellant to an

aggregate 15 to 30 years of incarceration.2 Appellant filed a post-

sentence motion on September 6, 2014, which the trial court denied on

____________________________________________

2
Appellant’s sentence for robbery was a mandatory 10 to 20 years because
it was Appellant’s second conviction of a violent crime. See id. at 1.

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J-S49025-15

December 19, 2014. Appellant appealed. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925(b).

On appeal, Appellant presents two issues for our review:

1. Was the evidence insufficient for the guilty verdict?

2. Was the guilty verdict against the weight of the evidence?

Appellant’s Brief at 3.

In arguing that the evidence was insufficient to support his

convictions, Appellant recites three and a half pages of case law, followed by

his assertion:

Appellant was convicted on pure speculation. There were no
facts presented by the Commonwealth at trial that proved the
Appellant was guilty of the crimes charged. The jury was
inflamed by the three (3) Commonwealth witnesses that were
granted immunity in this matter. All three (3) Commonwealth
witnesses admitted they were involved in this violent criminal
crime and provided major inconsistencies with each of their
testimony. The Jury rendered its verdict based on alleged
circumstantial evidence which did not meet the elements of the
crimes charged and which certainly created extreme reasonable
doubt.

Appellant’s Brief at 10-11.

The above paragraph constitutes Appellant’s entire sufficiency

argument, which is belied by the record. After reviewing the notes of

testimony, we have determined that The Honorable Carol L. Van Horn,

sitting as the trial court, has capably and accurately addressed Appellant’s

sufficiency argument, such that further commentary by this Court would be

redundant. See Trial Court Opinion, 12/19/14, at 4 – 12 (including the trial

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J-S49025-15

court’s axiomatic conclusion that “the determination of credibility and

sufficiency of the three co-participants’ testimony and the other independent

evidence was for the [jury as] factfinder to decide . . .”). We therefore

adopt the trial court’s analysis as our own in disposing of this issue.

We are equally unpersuaded by Appellant’s argument regarding the

weight of the evidence. Appellant states “there were no witnesses that

testified that they witnessed the Appellant commit the crimes [charged].”

Appellant’s Brief at 11. Appellant continues that he “was not involved in the

criminal conduct in this matter and had a valid and true alibi defense.” Id.

at 12. Additionally, Appellant again references the “conflicting” testimony of

“all three (3) of the government witnesses [who] testified they committed

the crimes”, and his “three (3) credible alibi witnesses, who testified under

oath that it was impossible for the Appellant to commit the crimes charged .

. . “ Id. at 14.

Again, the trial court properly applied the law, recognizing, inter alia,

that a verdict is against the weight of the evidence only where it is “so

contrary to the evidence as to shock one’s sense of justice and make the

award of a new trial imperative.” Trial Court Opinion, 12/19/14, at 12, citing

Commonwealth v. Hudson, 955 A.2d 1031, 1035 (Pa. Super. 2008). The

trial court observed that “the jury’s credibility determinations were quite

understandable in the instant case.” Id. at 13. Our review of the notes of

testimony supports the trial court, which recognized the province of the jury

as factfinder, and observed that “the verdicts were not so contrary to the

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J-S49025-15

evidence as to shock one’s sense of justice.” Id. at 13-14. We may not re-

weigh the testimony adduced at Appellant’s trial. See Commonwealth v.

Hawkins, 701 A.2d 492, 501 (Pa. 1997) (the credibility of witnesses is

“solely for the [fact finder] to determine”); see also Commonwealth v.

Dougherty, 860 A.2d 31, 36 (Pa. Super. 2004) (citations omitted) (“This

Court cannot substitute its judgment for that of the [fact finder] on issues of

credibility.”). Moreover, “[i]t is the function of the [fact finder] to evaluate

evidence adduced at trial to reach a determination as to the facts, and

where the verdict is based on substantial, if conflicting evidence, it is

conclusive on appeal.” Commonwealth v. Reynolds, 835 A.2d 720, 726

(Pa. Super. 2003) (citation omitted). Given the foregoing, we find no merit

to Appellant’s weight claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015

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IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania, CRIMINAL ACTION

vs. No: 543-2014

John Michael Zawierucha,
Defendant Honorable Carol L. Van Horn

OPINION AND ORDER OF COURT .

Before Van Horn, J.
 Circulated 07/27/2015 03:47 PM

IN THE COURT OF COMMON PLEAS OF THE 39 TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania, CRIMINAL ACTION

vs. No: 543-2014

John Michael Zawierucha,
Defendant Honorable Carol L. Van Horn

STATEMENT OF THE CASE

On August 6, 2014, a jury found the above captioned Defendant, John Michael

Zawierucha guilty of Robbery, 1 Conspiracy to Commit Robbery' and Theft.3 Defendant was

sentenced on September 3, 2014, to an aggregate sentence of 15 to 30 years in a State

Correctional Institution. The sentence for robbery, which was 10 to 20 years, was mandatory for

the Defendant as the robbery was his second conviction for a crime of violence. Defendant filed

a timely Post-Sentence Motion on September 6, 2014, which included a Motion for Judgment of

Acquittal" challenging the sufficiency of the evidence to sustain the verdicts on all three

convictions. Defendant's Post-Sentence Motion also included a Motion for a New Trial5 which

argued that the jury's verdict was against the weight of evidence. An Answer was not filed by the

Commonwealth and the Defendant waived a hearing on the matter. The issue is now ripe for

decision in this Opinion and Order of Court.

1
18 Pa. C.S. 3701{a}(ii).
2
18 Pa. C.S. 903. (18 Pa. C.S. 3701(a)(ii)}.
3
18 Pa.C.S. § 3921.
4
Such Motion is made pursuant to Pa.R.Crim.P. 720(B}(l)(a)(ii).
5
Such Motion is made pursuant to Pa.R.Crim.P. 720(B)(l)(a)(iv).

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 Circulated 07/27/2015 03:47 PM

BACKGROUND

The above-captioned charges arose out of events that transpired on April 13, 2014, at the

Sunoco gas station in Greencastle, Pennsylvania. The victims, Michele Meadows and Alice

Watkins, were working together at the Sunoco gas station as clerks at or around 9:15 or 9:30. At

that time, three men entered the store, two of which had bandanas over their faces. The first man,

Deonta Williams, jumped over the counter and pointed a gun at the victims. He threatened to kill

the clerks if they did not open the safe. While this was occurring, the second suspect, the

Defendant, walked around the counter and began putting money and Newport cigarettes inside a

pink and gray duffel bag. The third suspect, Trevon Walker, then took the clerks to another part

of the store and told them to relax and that everything would be over shortly. The three suspects

eventually fled with the cash and cigarettes. The victims subsequently called police to report the

robbery.

Follow their departure from the gas station, the three suspects were picked up by two

young women in a black Honda Civic. The two young women were later identified as Tiffani

Robey and Brittany Johnson. The black Honda Civic was initially followed by two witnesses,

Richard Rhodes and Lori Harbaugh, who testified they had earlier noticed the two young women

parked in a suspicious location in relation to the Sunoco gas station. (N.T. 8/4/2014 p. 107). Mr.

Rhoades testified that upon seeing the three male suspects running towards the car, one with a

duffel bag in hand, he suspected a potential robbery and followed the suspects at a high rate of

speed. Id. at 88. Although the suspects eventually lost Mr. Rhoades and Ms. Harbaugh, they

were able to get a tag number of the black Honda Civic and conveyed it to police. Id. at 89.

2
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II Circulated 07/27/2015 03:47 PM

Trooper Paul Decker testified that he assisted Trooper Dave Rush in investigating this

incident and met with Mr. Rhoades and administered him a photo lineup. Id. at 111-112. Mr.

Rhoades was able to identify one of the two females in the car, Tiffani Robey. Id. at 115. Tiffani

Robey and Brittany Johnson were later arrested and spoke with police a total of three (3) times.

Both women testified at trial that they fabricated an original story implicating three other men,

names they both made up. (N.T. 8/5/2014 p. at 20, 47-48). None of the names provided was that

of the Defendant, Deonta Williams, or Trevon Walker. Eventually, both women testified they.

decided to accept responsibility and as a result turned the real culprits in. Id. at 20, 49. Both told

police they had driven the Defendant, Deonta Williams, and Trevon Walker to the Sunoco in

order to commit the robbery and then picked up the men and proceeded to flee the scene. The

women testified that they subsequently drove to a Red Roof Inn in Germantown, Maryland,

where the five (5) individuals distributed the cash and cigarettes. Id. at 17, 46. Trevon Walker

also testified at trial that the Defendant participated in the robbery and was the suspect identified

as carrying the duffle bag. (N.T. 8/4/2014 p. 119-39). Finally, evidence presented at trial

confirmed that Defendant's cell phone was in fact near the Sunoco gas station at or around the

time of the robbery. (N.T. 8/5/2014 p. 61-70). Tiffani Robey testified that the Defendant had

given her the phone on the night before the robbery but that this was not uncommon and that she

was present with the Defendant while she had his phone. Id. at 13-14.

The Defendant attempted to offer an alibi defense at trial and called three witnesses in

support. The first was Stephanie Champagne, the Defendant's Mother. Ms. Champagne testified

that she dropped the Defendant off at a McDonalds in Rockville, Maryland at around 8: IO pm on

the night of the alleged robbery after picking him up from an AA meeting. (N.T. 8/5/2014 p. 99-

100). Ms. Champagne testified that the Defendant was with Trevon Walker at the time. Id. at

3
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I
l
100. Kenneth Wilder, the Defendant's cousin, also testified that he saw and briefly meet with

the Defendant and Trevon Walker at McDonalds on April 13, 2013, at around 8: 15 in the

evening. Id at. 104-05. Mr. Wilder further testified that he dropped the Defendant and Trev on

Walker off at Defendant's nearby sober house at around 8:30. Id. Finally, Katelyn Coutu,

Kenneth Wilder's girlfriend, testified that she was present in the car when the Defendant and

Trevon Walker were dropped off at the Defendant's sober house. Id. at 120-21. The crux of

Defendant's alibi defense was that given the amount of time it takes to travel to the Sunoco from

his sober house, he could not possibly have participated in the robbery. Ultimately, the jury

found this unpersuasive and convicted him on the aforementioned counts.

DISCUSSION

I. Sufficiency of the Evidence

Defendant moves the Court to enter a Judgment of Acquittal arguing that there was no

credible evidence was presented to support a finding that he was guilty of the charges for which

he was convicted. Thus, Defendant concludes that insufficient evidence Was presented to sustain

his convictions. The standard for evaluating sufficiency of the evidence claims is well

established:

The standard we apply when 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.

Commonwealth v. McClendon, 874 A.2d 1223, 1228 (Pa. .Super. 2005) (citations omitted); see

also Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011). When applying this

standard, the court "may not weigh the evidence and substitute our judgment" for that of the jury.

-Commonwealth v. Mack, 850 A.2d 690, 693 (Pa. Super. 2004) (citations omitted). Moreover,

"[a]ny doubts regarding a defendant's guilt may be resolved by the fact-finder unless the
4
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evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances." Commonwealth v. Eckrote, 12 A.3d 383, 386 (Pa. Super.

2010) (citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)). Importantly,

"facts and circumstances established by the Commonwealth need not preclude every possibility

of innocence." Mack, 850 A.2d at 693 (citations omitted). However, "guilt must be based on

facts and conditions proved," and the evidence is insufficient if guilt is based on "suspicion or

surmise." Eckrote, 12 A.3d at 386 (citing Commonwealth v. Swerdlow, 636 A.2d 1173 (Pa.

Super. 1994)). A conviction may be based entirely on circumstantial evidence as long as the

"evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Chmiel,

639 A.2d 9, 11 (Pa. 1994) (citations omitted). Finally, when deciding whether the evidence is

sufficient to sustain the verdict, "the entire record must be evaluated and all evidence actually

received must be considered." Mack, 850 A.2d at 693 (citations omitted). Yet, "the fact finder is

free to believe all, part, or none of the evidence presented at trial." Commonwealth v. Moreno,

14 A.3d 133, 136 (Pa. Super. 2011).

A. Robbery

Defendant first argues that the evidence was insufficient to support a guilty verdict of

robbery beyond a reasonable doubt because the Commonwealth failed to prove that the

Defendant was even near the location of the subject robbery, the Sunoco station near Interstate

81 Exit 10 in Antrim Township, Pennsylvania. Robbery is defined, in pertinent part, as follows:

A person is guilty of robbery if, in the course of committing a
theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of
immediate serious bodily injury;

5
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18 Pa. C.S. 370l(a)(i)-(ii). Because the evidence at trial allegedly failed to prove that the

Defendant was close enough to commit the theft at the Sunoco in question, Defendant avers that

he could not have threatened with or intentionally put either of the victims in fear of immediate

serious bodily injury while committing a theft. Defendant first points to the fact that neither of

victims, Michele Meadows or Alice Watkins, was able to positively identify the Defendant as a

participant in the robbery.6 Next, Defendant highlights that the three other witnesses who

testified that the Defendant participated in the robbery were all co-participants themselves. The

Defendant places significant emphasis on the fact that each of the co-participants who implicated

him received favorable treatment in exchange for their testimony and were able to plead to more

minor offenses than the Defendant. Defendant also contends that the co-participants admitted to

participating in a crime of violence and dishonesty and that their recall of events was poor and

contradictive.

Defendant concludes that this is the only evidence that identifies him as participant in the

robbery and it is "so obviously incredible that it must be disregarded." (Def's Motion 9/16/14 p.

3). Defendant then avers that he called three credible witnesses who testified that he was not in

the vicinity of the robbery on the night in question and therefore he could not have participated.

Although Defendant is correct that neither victim positively identified him, both

identified the suspect believed to be the Defendant, as a taller individual wearing a grayish blue

hoody and blue jeans. Both also testified that this suspect wore a bandana over his face during

the robbery and· was carrying a gray and pink duffle bag that he used to place the money and

cigarettes into.

6
It Is important to note that the victims did testify that both the first and second suspects were wearing bandanas
over their faces and had hoods up. (N.T. 8/4/14 p. 63, 67). Thus, most witnesses would likely have had trouble
positively identifying either of these suspects.

6
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As the Defendant correctly notes, the Commonwealth presented testimony of three

undisputed co-participants in the robbery: Tiffani Robey, Brittany Johnson and Trevon Walker.

The Defendant acknowledges that all three of these participants testified that the Defendant was

present and participated in the robbery. The description of the Defendant at the time of the

robbery by the three co-participants is also consistent with the testimony of the two victims of

the second suspect. Specifically, Tiffani Robey, the Defendant's ex-girlfriend, testified that the

Defendant was wearing a hoody and jeans and was also wearing a bandana over his face. (N. T.

8/5/14 p. 13). Additionally, she testified that the Defendant was carrying a duffel bag when he

entered the Sunoco gas station. Id. at 15. Brittany Johnson further testified when the Defendant

left the car he was carrying a "pink bag, my pink Nike bag." Id. at 44. Brittany Johnson also

testified that the Defendant was one of the two men wearing a bandana and that he was wearing

jeans and a dark colored hoody. Id. at 42. Finally, Trevon Walker identified not only himself, but

also Deonta Williams and the Defendant as the perpetrators of the robbery in question.

Specifically, Mr. Walker identified that the Defendant was carrying a bag that was "cotton candy

pink" when the three men robbed the Sunoco and was wearing a black or blue hoody. (N.T.

814114 p. 134, 137).

The heart of Defendant's initial argument appears to actually be a mixture of weight and

sufficiency. To wit, Defendant argues that he called three credible witnesses, Stephanie

Champaign, Kenneth Wilder and Kaitlyn Coutu, while the Commonwealth offered only the

questionable testimony of admitted co-participants who received favorable treatment in exchange

for their cooperation. Defendant also wholly dismisses the adequacy of the fact that the

testimony provided by the victims in this case is consistent with that of the three admitted co-

participants, simply because the victims could not positively identify the Defendant. This Court

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cannot agree, as such an argument is rampant with incorrect conclusions. As mentioned,

Defendant's argument is a mix of weight and sufficiency, as it deals in large part with the

credibility of the testimony of witnesses See Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa.

Super. 2011) ("[d]irected entirely to the credibility of the Commonwealth's chief witness,

Appellant's claim challenges the weight, not the sufficiency, of the evidence."); See also

Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013) (an argument that "goes to the

credibility of the witness's testimony . . . is ... not an attack on the sufficiency of the evidence,

but an allegation regarding the weight it should have been afforded."). However, because

Defendant does specifically address weight in his request for a new trial, the Court will begin our

analysis solely on his sufficiency of the evidence claim. hnportantly, as noted above, when

evaluating a sufficiency of the evidence claim, the court "may not weigh the evidence and

substitute our judgment" for that of the jury. Mack, 850 A.2d at 693 (citations omitted).

Defendant's claim that he is entitled to a judgment of acquittal because the jury found the

testimony of the Commonwealth's witnesses more credible than his essentially asks the Court to

weigh the evidence differently than the jury did, which the Court will not do.

Although not required, the Court would also note that the fact the jury found the

Commonwealth's witnesses to be more credible is quite logical and understandable. Defendant

argues that the three witnesses he called were all credible because they provided consistent

testimony and had nothing to gain by coming to trial to testify. Conveniently, Defendant fails to

note in his Post-Sentence Motion the intimate relationship he shares with all three of these

witnesses. To begin, Defendant's first witness, Stephanie Champagne, is his own mother. Next

Kenneth Wilder is the Defendant's cousin and described him as a "brother." (N.T. 8/5/14 p. 103).

Finally, Defendant's third witness, Kaitlyn Coutu, is the girlfriend of Mr. Wilder. Thus, to

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suggest that neither of these three witnesses had "anything to gain by coming to trial to testify" is

rather misleading. By providing a potential alibi defense for the Defendant, the witnesses would

insure that the Defendant, an individual all three have a close relationship with, would remain

out of prison. Such a close relationship would not, it and of itself, diminish the credibility of

these witnesses. However, the jury was aware of these relationships and was entitled to assign

the weight and credibility to the aforementioned testimony and did so in this case.

The Court simply cannot agree with Defendant's assertion that the testimony of the

witnesses provided by the Commonwealth was "so obviously incredible that it must be

disregarded" and as such is "so weak and inconclusive that as a matter of law no probability of

fact may be drawn from the combined circumstances." Eckrote, 12 A.3d at 386. To the contrary,

the Court finds that a majority of the testimony of both the victims and the three co-participants

regarding the robbery and the Defendant's participation to be relatively consistent." The

Defendant takes great strides to highlight the fact that each of the three admitted co-participants

received deals and favorable treatment in exchange for their testimony. However, the jury was

well aware of this, as the Commonwealth asked each witness on direct examination about the

treatment they were receiving in exchange for their testimony. (N.T. 8/4/14 at 121-122, 8/5/14 at

10, 37-38). Consequently, the jury was able to properly consider such circumstances in reaching

their verdict.

Defendant also attempts to undermine the testimony of three admitted co-participants by

emphasizing their participation in a crime of violence and dishonesty. However it is an apodictic

rule that evidence consisting largely of testimony of even a single co-participant is sufficient to

7
The Court is well aware of the rather bizarre and incoherent testimony provided by Trevon Walker on cross
examination. See (N.T. 10/4/14 p. 147-159). However, Mr. Walker's testimony on direct regarding the actual
logistics and details of the robbery was fairly consistent with the testimony of the victims, Tiffani Robey and
Brittany Johnson.

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sustain a robbery conviction. Commonwealth. v. Palmer, 462 A.2d 755, 761 (Pa. Super. 1983).

In Palmer, the defendant made a similar contention as in the instant case, arguing that evidence

was insufficient to sustain his robbery conviction because the only direct and circumstantial

evidence was supplied by a co-participant in the crime and was therefore a "corrupt source of

unworthy belief." Id. The Superior Court promptly disposed of this argument stating:

"Where parties in crime testify against each other, their testimony
must be recognized as coming from a corrupt source and therefore
must be subjected to the closest scrutiny." (Internal citations
omitted). However, the issue of credibility is for the factfinder to
resolve upon proper instructions by the trial court. The lower court
properly instructed the jury on the manner in which to view [co-
defendant' s] testimony. Moreover, [co-defendant's] testimony was
consistent throughout.and corroborated both as to events and
identifying details by other witnesses. It is within the province
of the jury to accept or reject evidence presented by
the Commonwealth. (Internal citations omitted). We cannot agree
with appellant that [co-defendant's] testimony was so unreliable
that the verdict was against the weight of the evidence. The lower
court, which observed the testimony, found it consistent and
corroborated. We believe that the jury reasonably believed [co-
defendant], and we therefore find the evidence sufficient to sustain
both convictions.

Id. Similar to Palmer, this Court also properly instructed the jury on the manner

in which to view accomplice testimony, advising: .

These are the three rules to be applied to accomplice testimony:
First, you should view the testimony of an accomplice with
disfavor because it comes from a corrupt and polluted source;
second you should examine the testimony of an accomplice closely
and accept it only with care and caution; and, third, you should
consider whether the testimony of the accomplice is supported in
whole or in party by other evidence. Accomplice testimony is more
dependable if it is supported by independent evidence.

(N.T. 8/6/14 at 46). Being properly instructed, the determination of the credibility and

sufficiency of the three co-participants' testimony and the other independent evidence was for

the factfinder to decide, and again, this Court will not disturb such a conclusion.

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In resolving Defendant's sufficiency of the evidence claim, the Court is required to view

all the evidence admitted at trial in the light most favorable to the verdict winner, the

Commonwealth. This entails a determination of whether the evidence presented in support of

the convictions was sufficient to enable the jury to find every element of the crimes beyond a

reasonable doubt. Viewing the presented evidence in the light most favorable to the

Commonwealth, such evidence is clearly sufficient to support Defendant's robbery conviction.

B. Conspiracy to Commit Robbery

Defendant next argues that the evidence was insufficient to support a guilty verdict of

conspiracy to commit robbery beyond a reasonable doubt because the Commonwealth failed to

prove that the Defendant agreed with any of the co-participants to commit the robbery.

Conspiracy is defined, in pertinent part, as follows:

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.

18 Pa.C.S. § 903. The previously discussed robbery definition also applies to Defendant's

conspiracy to commit robbery conviction. 18 Pa. CS. 3701(a)(ii). Similar to Defendant's

previous insufficient 'evidence argument regarding his robbery conviction, Defendant asserts that

the testimony provided by the three admitted co-participants is "simply incredible" and is

insufficient evidence to support his conspiracy conviction. Specifically, Defendant argues that

Tiffani Robey's testimony is the sole source of evidence that the Defendant conspired with the

others to participate in the robbery and that the witnesses called by the Defendant rebutted this

by testifying that he remained in the Rockville area on the night of the robbery. However, as

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previously noted, evidence consisting largely of testimony of even a single co-participant is

sufficient to sustain such a conviction. Palmer, 462 A.2d at 761. This Court finds that the jury

reasonably believed the admitted co-participant's testimony regarding the agreement and

planning of the five (5) participants to commit the robbery and such evidence is sufficient to

sustain a conviction for conspiracy to commit robbery.

C. Theft

Defendant also avers that the evidence was insufficient to support a guilty verdict for

Theft beyond a reasonable doubt because, for the same reason articulated in his robbery

argument, the Commonwealth failed to prove he was even near the location of the subject

robbery. Theft is defined, in pertinent part, as follows:

(a) Movable prcperty--A person is guilty of theft if he unlawfully
takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.

1 8 Pa. C. S. § 3 921. The reasons set forth above disposing of Defendant's insufficient evidence

argument regarding his robbery conviction are also applicable to Defendant's theft conviction.

Consequently, Defendant's requested relief on this conviction must also be denied.

II. Weight of the Evidence

Defendant also argues that, if this Court finds his sufficiency of the evidence argument

claim to be without merit, the verdict issued by the jury on all three counts was against the

weight of the evidence and that granting of a new trial is necessary in the interest of justice. The

Court does not agree.

A verdict is against the weight of the evidence where it is "so contrary to the evidence as

to shock one's sense of justice and make the award of a new trial imperative." Commonwealth v.

Hudson, 955 A.2d 1031, 103 5 (Pa. Super. 2008). The jury is entitled to believe "all, part, or

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none of the evidence, and credibility determinations rest solely within the purview of the fact-

finder." Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). A jury does not have to believe

any testimony and the weight to be credited to testimonial or other evidence presented is a
I
1. determination resting solely with the jury. See Commonwealth v. Flor, 998 A.2d 606, 626 (Pa.

2010). A new trial should not be granted based upon "a mere conflict in the testimony" and

must have a stronger foundation than a reassessment of the credibility of witnesses.

Commonwealth v. Bruce, 916 A.2d 657, (Pa. Super. 2007). The court must not act as a thirteenth

juror. See id. Rather, the Court must determine that "notwithstanding all the facts, 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." Id. (citing Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)).

Defendant's weight of the evidence contention mirrors the facts upon which his

sufficiency of evidence argument was premised. To wit, that the: (1) testimony of the victims of

the robbery was not credible because they could not positively identify the Defendant; (2) that

. the testimony of the three admitted co-participants in the robbery was not credible because they

all received favorable treatment in exchange for it and they engaged in a crime of dishonesty and

violence; and (3) that the testimony of three witnesses offered by the Defendant were credible

because they had nothing to gain by testifying at trial.

The Defendant's weight claim fails. The jury is free to believe all, part, or none of the

evidence, and to make credibility determinations. Conflicts between testimonies are for the jury

to resolve, and review of the jury's credibility determinations is not for the trial court to

undertake. Even ifthere Court were to undertake such a matter, the jury's credibility
! .
determinations were quite understandable in the instant case. Upon careful consideration of the

record, the Court does not find any of the evidence presented by the Defendant in support of his

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weight claim so clearly of greater weight than the evidence presented supporting his convictions

that failure to give· it credence amounts to a denial of justice. Simply put, the verdicts are not so

contrary to the evidence as to shock one's sense of justice.

CONCLUSION

For the abovementioned reasons, the Court finds the verdicts are supported by sufficient

evidence and they are not against the weight of the evidence. Pursuant to the attached Order,

Defendant's Post-Sentence Motion is denied.

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IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania, CRIMINAL ACTION

vs. No: 543-2014

John Michael Zawierucha,
Defendant Honorable Carol L. Van Horn

ORDER OF COURT

AND NOW THIS 191:¥' day of December, 2014, the Court having reviewed and
considered the Defendant's Post-Sentence Motion and upon review of the applicable law;

IT IS HEREBY ORDERED THAT the Defendant's Post-Sentence Motion is
DENIED.

YOU ARE HEREBY ADVISED THAT Pursuant to Rule 720(4) of the Pennsylvania

Rules of Criminal Procedure:

1. You have the right to appeal from the Court's decision disposing of your motion [Pa R.

Crim. P. 720(4)(a)];

2. If you choose to exercise that right, you must do so within thirty (30) days of the date of

this order [Pa. R. Crim. P. 720(4)(a); Pa. R. App. I>. 903(a)];

3. You have the right to assistance of counsel in the preparation of your appeal [Pa. R.

Crim. P. 720(4)(b)];

4. · If you are indigent, you have the right to appeal in forma pauperis and to have counsel

appointed to represent in your appeal [Pa. R. Crim. P. 720(4)(c); Pa. R. Crim. P. 122];

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5. You have the qualified right to bail under Pa. R. Crim. P. 521(b) [Pa. R. Crim. P.

720(4)(d)].

Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately docket this
Opinion and Order of Court and record in the docket the date it was made. The Clerk shall
forthwith furnish a copy of the Opinion and Order of Court, by mail or personal delivery, to each
party or attorney, and shall record in the docket the time and manner thereof

By the Court,

Carol L.Van Horn, J.

Copies;
Lauren Sulcove, Esq., First Assistant District Attorney
Kenneth Young, Esq., Attorney for Defendant
Todd Sponseller, Esq., Trial Counsel for Defendant

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