J-S19002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES BYRD,
Appellant No. 2135 EDA 2015
Appeal from the Judgment of Sentence Entered January 23, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005643-2013
BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 13, 2016
Appellant, James Byrd, appeals from the judgment of sentence of 9 to
22 years’ incarceration, imposed after a jury convicted him of several counts
of robbery, and one count of fleeing or eluding a police officer. Appellant
seeks to argue that the court abused its discretion by denying his pretrial
Pa.R.Crim.P. 600 motion to dismiss, and that the evidence was insufficient to
support his convictions. Additionally, Appellant’s counsel, John F. Walko,
Esq., seeks to withdraw his representation of Appellant pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
In June of 2013, Appellant was arrested and charged, in two separate
cases, based on his involvement with two cohorts in an armed robbery of a
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bank in Montgomery County, Pennsylvania. Following a jury trial that
concluded on July 18, 2014, Appellant was convicted, in the above-captioned
case, CP-46-CR-0005643-2013 (hereinafter “Case No. 1”), of three counts of
robbery - threat of immediate serious bodily injury, 18 Pa.C.S. §
3701(a)(1)(ii); one count of robbery - demanding money from a financial
institution, 18 Pa.C.S. § 3701(a)(1))vi); and fleeing or attempting to elude a
police officer, 75 Pa.C.S. § 3733(a). On January 23, 2015, Appellant was
sentenced to 6 to 12 years’ imprisonment, to run consecutively to a term of
five to ten years’ imprisonment that was imposed in a separate case
(hereinafter “Case No. 2”).1
The trial court’s docket indicates that on January 28, 2015, Appellant
filed a pro se motion for reconsideration of his sentence in the present case,
Case No. 1. On March 13, 2015, the court issued an order denying that
motion. However, according to the trial court’s opinion, it subsequently
learned from defense counsel “that the parties were negotiating a reduced
sentence for [Appellant] because of cooperation [he] had rendered in
another case.” Trial Court Opinion (TCO), 10/20/15, at 2. The court goes
on to explain that,
on March 24, 2015, the undersigned signed a stipulated order
presented by counsel rescinding our [March 13, 2015] order
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1
It is unclear from the record before us if Case No. 2 was related, in any
way, to Case No. 1.
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denying [Appellant’s] post-sentence motion. Counsel captioned
this stipulated order under both Case No. [1] and Case No. [2].
On April 27, 201[5], [the district attorney] emailed the
undersigned to report that he and [defense counsel] had reached
an agreement to reduce [Appellant’s] case in Case No. [2].
Accordingly, by order dated April 27, 2014, the undersigned
entered an order reflecting that agreement and amending the
sentence imposed in Case No[. 2] to reflect a reduced sentence
on Count I in that case.
Counsel [for both parties] subsequently informed the
undersigned that they had negotiated a further reduction in
[Appellant’s] sentence. Counsel presented the undersigned with
an agreed order further reducing [Appellant’s] sentence in Case
No. [2]. The order did not modify [Appellant’s] sentence in Case
No. [1], but provided that, given the reduction of sentence in
Case No. [2], “the aggregated sentence under … [Case No. 1 and
Case No. 2] shall be not less than nine years nor more than
twenty-two years[’] incarceration in a State Correctional
Institution.” The undersigned signed counsel’s agreed order on
June 12, 2015, and the order was formally docketed on June 15,
2015. Although we believe that the agreed order presented by
counsel was intended to resolve [Appellant’s] request for
modification of his sentence in its entirety, [i.e., in both Case No.
1 and Case No. 2,] counsel captioned this order only under Case
No. [2], as a result of which it was not docketed of record in
Case No. [1].
On July 8, 2015, [Appellant] mailed to this court a pro se
notice of appeal in Case No. [1], which was formally docketed on
July 15, 2015. We believe that [Appellant’s] notice of appeal is
at least arguably timely, given that it was mailed within thirty
days of our June 15, 2015 order modifying [Appellant’s]
sentence. By order dated July 31, 2015, the undersigned
appointed John F. Walko, Esquire, to represent [Appellant] as
appellate counsel.
By separate order dated July 31, 2015, the undersigned
directed [Attorney] Walko to file of record a statement of errors
complained of on appeal, pursuant to [Pa.R.A.P.] 1925(b). In
order to allow [Attorney] Walko sufficient time to review the
voluminous record in this case and to assure himself that all
relevant proceedings had been transcribed, the undersigned
subsequently entered an order on September 9, 2015 granting
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[Attorney] Walko twenty-one days from that date – or the date
on which all relevant transcripts were docketed – to file
[Appellant’s] Rule 1925(b) statement. The undersigned received
a copy of [Attorney] Walko’s [Pa.R.A.P. 1925(c)(4)] statement of
intention to file an Anders/Santiago brief on September 29,
2015.
TCO at 2-3.
On December 2, 2015, Attorney Walko filed with this Court a petition
to withdraw. He also filed an Anders brief, asserting that the two claims
Appellant wishes to raise on appeal are frivolous, and that Appellant has no
other non-frivolous issues he could assert on appeal.
This Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is
frivolous; and
(4) state counsel's reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
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the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Walko’s Anders brief substantially complies with
the above-stated requirements. Namely, he includes a summary of the
relevant factual and procedural history, he refers to portions of the record
that could arguably support Appellant’s claims, and he sets forth his
conclusion that Appellant’s appeal is frivolous. He also explains his reasons
for reaching that determination, and supports his rationale with citations to
the record and pertinent legal authority.2 Attorney Walko also states in his
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2
However, we note, with displeasure, that Attorney Walko provides minimal
citations to the trial notes of testimony in his statement of the facts, and
provides no citations to the transcripts in his discussion of Appellant’s
sufficiency of the evidence claim. This failure on counsel’s part is especially
problematic in our review of Appellant’s claims because the trial court did
not set forth any meaningful discussion of Appellant’s issues in its Rule
1925(a) opinion. See TCO at 4 (addressing Appellant’s two issues by stating
only “that the record on its face establishes that the Commonwealth
presented sufficient evidence to convict [Appellant] of all of the crimes of
which the jury found [him] guilty, and that our July 14, 2014 denial of
[Appellant’s] Rule 600 motion was proper and fully supported on the face of
the record”). Additionally, the Commonwealth did not file a brief in this case
but, instead, merely submitted a letter informing this Court “that it does not
(Footnote Continued Next Page)
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petition to withdraw that he has supplied Appellant with a copy of his
Anders brief, and he attaches a letter directed to Appellant in which he
informs Appellant of the rights enumerated in Nischan. Accordingly,
counsel has substantially complied with the technical requirements for
withdrawal. We will now independently review the record to determine if
Appellant’s issues are frivolous, and to ascertain if there are any other non-
frivolous issues he could pursue on appeal.
Appellant first seeks to challenge the trial court’s denial of his pretrial,
Rule 600 motion to dismiss the charges against him. Our scope and
standard of review for such claims is well-settled:
In evaluating Rule 600 issues, our standard of review of a trial
court's decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
The proper scope of review ... is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
the trial court. An appellate court must view the facts in the light
most favorable to the prevailing party.
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
_______________________
(Footnote Continued)
believe there is merit to any issue and that the judgment of sentence should
be affirmed.” Commonwealth’s Letter at 1.
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protection of the accused's speedy trial rights, and (2) the
protection of society.
…
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule 600 must be construed in a
manner consistent with society's right to punish and deter crime.
In considering these matters ..., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous
law enforcement as well.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en
banc) (quoting Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super.
2004) (en banc)).
Rule 600(A)(2)(a) requires that a trial commence within 365 days of
the filing of the written complaint.3
The mechanical run date is the date by which the trial
must commence under [Rule 600]. It is calculated by
adding 365 days (the time for commencing trial under
[Rule 600]) to the date on which the criminal complaint is
filed. As discussed herein, the mechanical run date can be
modified or extended by adding to the date any periods of
time in which delay is caused by the defendant. Once the
mechanical run date is modified accordingly, it then
becomes an adjusted run date.
If the defendant's trial commences prior to the adjusted run
date, we need go no further.
Ramos, 936 A.2d at 1102 (internal citation and footnote omitted).
____________________________________________
3
Rule 600 was revised in 2012, and the current version of the rule became
effective on July 1, 2013, prior to Appellant’s filing of his pretrial motion to
dismiss.
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Here, the Commonwealth filed an initial criminal complaint on June 20,
2013, which it later withdrew and refiled charges on July 19, 2013.
Appellant argued, in his pretrial motion to dismiss, that the Rule 600
calculations should commence on the filing date of the first complaint,
making the mechanical run date June 20, 2014. Because his trial began on
July 15, 2014, he maintained that Rule 600 was violated and the charges
against him should be dismissed. The Commonwealth, however, contended
that the July 19, 2013 criminal complaint governed for Rule 600 purposes,
making Appellant’s trial within the mechanical run date of July 19, 2014.
See N.T. Hearing, 7/14/14, at 10-11, 14-16.
Alternatively, the Commonwealth maintained that even if the original
filing date of June 20, 2013, was used, there was excludable time that made
Appellant’s trial fall within the adjusted run date. Specifically, the
Commonwealth argued that the time between January 16th and March 13th
of 2014 was excludable time. To prove this point, the Commonwealth
presented a “Call of The Trial List Order[,]" which indicated that on January
16, 2014, “the defense” requested that the case be relisted for a later ‘call of
the trial list.’ The next call of trial list was on March 13, 2014. At the
pretrial hearing on Appellant’s Rule 600 motion, the Commonwealth argued
that this 56-day defense continuance should be excluded from the Rule 600
calculations, making the adjusted run date August 14, 2014. Because
Appellant’s trial commenced on July 15, 2014, the Commonwealth argued
that there was no Rule 600 violation.
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In response, Appellant’s counsel argued that the continuance request
was made by one of Appellant’s then-codefendants, who had to obtain new
counsel, and, thus, that time should not be attributable to Appellant. See
N.T. Hearing at 27. However, in regard to whether Appellant had expressed
an objection to the continuance, defense counsel could only vaguely state
that he “recollect[ed]” that an objection was made, but he could not point to
any place in the record to confirm that fact, nor even recall the “exact date”
on which an objection was lodged. Id. Instead, counsel could state only
that an objection was made “sometime in between” January 16th and March
13th of 2014. Id.
The Commonwealth, however, pointed out that Appellant’s motion to
dismiss did not mention, let alone challenge, the time between January 16 th
and March 13th being attributed to the defense, in general, rather than to
one particular codefendant. Thus, the Commonwealth argued that Appellant
had not complied with Rule 600(D)(3). See id. at 28.
We agree with the Commonwealth. Rule 600 directs the trial court to,
inter alia, identify the party requesting the continuance, and “record to
which party the period of delay caused by the continuance shall be
attributed.” Pa.R.Crim.P. 600(C)(3)(a)(ii). To challenge a court’s
determination in this regard, a defendant must raise such a claim in their
Rule 600 motion to dismiss. See Pa.R.Crim.P. 600(D)(1)-(3). Here,
Appellant did not challenge, in his motion to dismiss, the at-issue, 56-day
delay being attributable to him, rather than to one of his codefendants. He
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also was only able to vaguely state at the hearing that the continuance was
due to his codefendant, and that he lodged an objection at some point
between January 16th and March 13th of 2014.
Because Rule 600 expressly states that “periods of delay caused by
the defendant shall be excluded” from Rule 600 calculations, the 56-day
defense continuance between January 16th and March 13th was excludable.
Adding this time to the June 19, 2014 mechanical run date results in an
adjusted run date of August 14, 2014. Appellant’s trial began on July 15,
2014, and, thus, no Rule 600 violation occurred.4 Accordingly, we agree
with Attorney Walko that challenging the trial court’s denial of Appellant’s
Rule 600 motion would be frivolous.
Appellant next seeks to challenge the sufficiency of the evidence to
sustain his convictions.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
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4
Additionally, we note that Appellant baldly asserted at the pretrial hearing
that only 30 of the 56 days between January 16th and March 13th of 2014
should be excluded from the Rule 600 calculations. However, he provided
no legal authority, or compelling argument, to support that position. See
N.T. Hearing at 27 (defense counsel’s simply stating that “any delay in
excess of 30 days should not be attributable to [Appellant]” because,
“[c]ertainly[, Appellant] can’t be expected[,] if he did request a
continuance[,] to be requesting a continuance for an infinite amount of
time”). In any event, even if only 30 days should have been attributed to
Appellant, the resulting adjusted run date would have been July 19, 2014,
and Appellant’s trial began on July 15, 2014.
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reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant was convicted of several counts of robbery, as defined by
the following provisions of 18 Pa.C.S. § 3701(a):
(1) A person is guilty of robbery if, in the course of committing a
theft, he:
***
(ii) threatens another with or intentionally puts him in fear
of immediate serious bodily injury;
***
(vi) takes or removes the money of a financial institution
without the permission of the financial institution by
making a demand of an employee of the financial
institution orally or in writing with the intent to deprive the
financial institution thereof.
18 Pa.C.S. § 3701(a)(1)(ii), (vi). Specifically, Appellant was convicted of
three counts of robbery – threat of immediate serious bodily injury,
pertaining to three individuals, Ashley McHone, Charles Fulmer, and Jean
Gresko. He was also convicted of one count of robbery – financial
institution. Finally, Appellant was convicted of one count of fleeing or
eluding a police officer, defined as:
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(a) Offense defined.--Any driver of a motor vehicle who
willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer,
when given a visual and audible signal to bring the vehicle to a
stop, commits an offense as graded in subsection (a.2).
75 Pa.C.S. § 3733(a).
To prove these offenses, the Commonwealth presented testimony of
McHone, Fulmer, and Gresko, who were all inside National Penn Bank in
Pottstown, Pennsylvania, on June 19, 2013. First, Ashley McHone, an
employee of the bank, testified that at approximately 2:50 p.m., two men
armed with guns entered the building. N.T. Trial, 7/16/14, at 49-50.
McHone stated both men were armed with guns. Id. at 50. One of the
men, who was armed with a revolver, jumped over the counter and told all
of the employees to “get down.” Id. at 50, 53. That man then “took
[McHone] to each of the stations and made [her] open the drawer so he
could remove the cash.” Id. at 53. While this occurred, the man held his
gun “in [McHone’s] side[,]” making McHone feel afraid that she “wasn’t
going to go home.” Id. The other, taller man stood in the lobby of the bank
making sure that the employees and customers there “weren’t moving.” Id.
After emptying the cash from the teller stations, the men began to
leave the bank, at which point a customer, Charles Fulmer, entered. Id. at
54. McHone testified that the armed robbers told Fulmer to lie on the
ground and then took bags of money that Fulmer had carried into the bank.
Id. at 54, 63. When the men then left the bank, McHone “went over to the
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window … and … saw a silver[,] sedan-type car going down the road.” Id. at
56. McHone testified that the car “accelerated quickly” away. Id. at 57-58.
Next, Charles Fulmer took the stand and testified that he walked into
the bank on June 19, 2013, carrying “two bags of half dollar[]” coins. Id. at
91. Fulmer testified when he entered, he saw a man to his right who was
“holding a gun….” Id. The man told Fulmer to lie “on the floor[,]” took the
bags Fulmer was carrying, and immediately left the bank with another man.
Id.
Jean Gresko, an employee of the bank, also testified for the
Commonwealth. She stated that at around 2:50 p.m. on June 19, 2013, she
was facing away from the door [of the bank] and [she] heard, ‘Get your
hands up.’” Id. at 100. She turned to see “a person standing there pointing
a gun at [her] and [she] just put [her] hands up.” Id. Gresko saw another
man “behind the … teller line.” Id. at 101. That man also had a gun and
was “making a girl go from … teller drawer to teller drawer, taking the
money out and put[ting] it in a bag.” Id. After the men left the bank,
Gresko called 911. Id. at 102. She then looked out the window and “saw a
silver car drive quickly up to the traffic light…, stop[] briefly and [take] a fast
left and turn[] left down the street.” Id. at 103.
The Commonwealth also presented the testimony of several police
officers who attempted to stop the silver Hyundai shortly after the robbery.
According to their testimony, the vehicle initially stopped on the side of the
road, but then fled from police. See id. at 151-154, 171-74. Several
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officers pursued the vehicle, which eventually stopped in a residential cul-
de-sac and the occupants fled on foot. Id. at 174-78, 198. After a short
search of the area, three men were taken into custody and identified as
Iashaq Ibrahim, Wesley Davis, and Appellant. Id. at 202, 217, 219, 221.
Davis and Ibrahim were wearing clothing that was similar to that worn by
the robbers in a video recorded by the bank’s surveillance cameras. N.T.
Trial, 7/17/14, at 77, 79, 105, 118, 123, 125.
Near the abandoned Hyundai, officers found “several large piles of
currency,” which had been “placed under … rocks.” Id. at 53. Additionally,
officers found a bag containing money “tucked under [a] wall” near the
vehicle. Id. at 54. The bag contained $11,377. Id. at 115. In the area,
officers also discovered a “canvas bank bag that was filled with … 50-cent
pieces” and a “clear plastic bag … filled with some type of clothing.” Id. at
67. Some of the clothing in the bag matched that worn by the bank
robbers, as seen in video surveillance footage. Id. at 68-69, 76. DNA
testing linked Davis and Ibrahim to several of the articles of clothing found
in the bag. Id. at 104, 108. A Smith & Wesson automatic pistol was also
recovered in close proximity to where the vehicle was parked. Id. at 83-84,
96. Approximately five months later, a revolver was found in the area, as
well. Id. at 103. Additionally, a search warrant was obtained for the
Hyundai vehicle, and it was discovered that the vehicle was registered to
Appellant’s father. Id. at 111, 126. The search revealed, among other
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things, a cloth bank bag and $499 worth of coins in the trunk of the car. Id.
at 126.
The Commonwealth also presented the testimony of a DNA expert who
stated that DNA swabs were taken from Ibrahim, Davis, and Appellant, and
were compared to DNA swabs collected from the Smith & Wesson pistol
used in the robbery. Specifically, the expert stated that DNA found on the
“slide serration” of the Smith & Wesson pistol was collected. The expert
explained that area of the gun, as follows:
[DNA Expert:] Slide serrations are grooves, so as you rack the
slide back and forth they kind of have grip to them, so you have
to exert a good amount of pressure in order to pull the slide
back, and slide serrations put pressure against your fingers. So
they are a good surface to collect skin cells.
N.T. Trial, 7/17/14, at 163, 167-68. When the DNA taken from the slide
serration of the firearm was compared to Appellant’s DNA, it was determined
that he “could not be excluded as a major source contributor.” Id. at 163.
The expert then explained:
[DNA Expert:] Every time we make an association or say that
someone cannot be excluded as a contributor, we put a
statistical weight to that, we calculate a statistic. In this case we
do a statistic where we determine how rare this profile would be
within the general population.
So, if I were to select someone at random from the
population, and [assess] the chance [that] their DNA would
match this profile[,] I would only expect that one person out of
more than 7 trillion would match this profile.
Id. at 163-64.
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Once the Commonwealth rested, Appellant took the stand in his own
defense. He admitted that he drove Ibrahim and Davis to the bank, but
claimed that he did so only as an unlicensed taxi driver, and he had no
knowledge that the men planned to rob the bank. See N.T. Trial, 7/17/14,
at 219-240. Appellant further testified that he fled from the traffic stop
because Ibrahim held a gun to his side and the men directed him to drive
away. Id. at 245-46. Appellant stated that once he stopped the car at
Ibrahim’s direction, he fled the scene on foot to escape Ibrahim and Davis.
Id. 247-49. He claimed that he had no knowledge of, and did not willingly
participate in, the robbery of the bank. Id. at 249.
This evidence, albeit circumstantial, was sufficient to demonstrate that
Appellant was guilty of the above-stated crimes under a theory of
accomplice liability.
It is well-established … that a defendant, who was not a principal
actor in committing the crime, may nevertheless be liable for the
crime if he was an accomplice of a principal actor. See 18
Pa.C.S. § 306; see also Commonwealth v. Bradley, 481 Pa.
223, 392 A.2d 688, 690 (1978) (the actor and his accomplice
share equal responsibility for commission of a criminal act). A
person is deemed an accomplice of a principal if “with the intent
of promoting or facilitating the commission of the offense, he: (i)
solicit[ed the principal] to commit it; or (ii) aid[ed] or agree[d]
or attempt[ed] to aid such other person in planning or
committing it.” 18 Pa.C.S. § 306; Commonwealth v. Spotz,
552 Pa. 499, 716 A.2d 580, 585 (1998). Accordingly, two prongs
must be satisfied for a defendant to be found guilty as an
“accomplice.” See Commonwealth v. Woodward, 418 Pa.
Super. 218, 614 A.2d 239, 242 (1992). First, there must be
evidence that the defendant intended to aid or promote the
underlying offense. See id. Second, there must be evidence that
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the defendant actively participated in the crime by soliciting,
aiding, or agreeing to aid the principal. See id.
Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004).
Here, Appellant admitted that he drove Ibrahim and Davis to the bank,
and waited for them while the robbery occurred. Inside the bank, Ibrahim
and Davis brandished guns and pointed them at McHone, Fulmer, and
Gresko while taking money from the teller stations and the bags of money
carried by Fulmer. These actions placed McHone, Fulmer, and Gresko in
danger of immediate, serious bodily injury, or, at the very least, threatened
them with the same. See Commonwealth v. Gillard, 850 A.2d 1273,
1275-76 (finding sufficient evidence to establish that bar patrons were
placed in fear of serious bodily injury to support robbery convictions where
defendant waved a gun at the patrons and then took money from the
register). Once Ibrahim and Davis obtained the money from the bank’s
teller stations, and the bags of money possessed by Fulmer, the men left
the bank and returned to Appellant’s vehicle. McHone and Gresko both
testified that they saw Appellant’s vehicle drive quickly away from the
scene.
When police attempted to stop Appellant’s car, he fled both in his car,
and later on foot. After the men were found and taken into custody, a
search of the area around Appellant’s car, and in the trunk of the vehicle,
revealed money stolen from the bank, half-dollar coins taken from Fulmer,
clothing worn by the bank robbers, and the guns used during the crime.
Appellant’s DNA was discovered on the Smith & Wesson pistol used during
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the robbery, making it reasonable for the jury to infer that Appellant knew
Ibrahim and Davis were armed when they went into the bank to commit the
robbery, and shared the intent to place the individuals inside the bank in
fear of immediate serious bodily injury.
Consequently, the totality of this evidence, viewed in the light most
favorable to the verdict winner, was sufficient to prove that Appellant aided
Ibrahim and Davis in committing the specific offenses of robbery – threat of
immediate serious bodily injury, with regard to each of the victims inside
the bank. Additionally, the evidence was sufficient to prove that Appellant
acted as Ibrahim’s and Davis’ accomplice in committing the robbery of a
financial institution as defined by section 3701(a)(1)(vi). Finally, the
Commonwealth’s evidence was more than sufficient to demonstrate that
Appellant, as a principal actor, committed the crime of fleeing or eluding a
police officer. While Appellant testified that he had no knowledge of the
robbery, and claimed that he fled because Ibrahim pointed a gun at him,
the jury obviously disbelieved his testimony, which it was free to do. See
Commonwealth v. Blackham, 909 A.3d 315, 320 (Pa. Super. 2006) (“The
weight of the evidence is exclusively for the finder of fact, which is free to
believe all, part, or none of the evidence, and to assess the credibility of the
witnesses…. It is not for this Court to overturn the credibility
determinations of the fact[-]finder.”). Therefore, we agree with Attorney
Walko that Appellant’s challenge to the sufficiency of the evidence is
frivolous.
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J-S19002-16
Our independent review of the record reveals no other, non-frivolous
issues that Appellant could assert on appeal. Accordingly, we affirm his
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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