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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FLOYD EDWARD PATTERSON
Appellant No. 1307 MDA 2015
Appeal from the Judgment of Sentence June 17, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000903-2014
BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 23, 2016
Floyd Edward Patterson appeals from the judgment of sentence of
fifteen to forty years imprisonment that was imposed after a jury convicted
him of aggravated assault, simple assault, recklessly endangering another
person, and conspiracy. We affirm.
The following evidence was adduced at trial. On the night of January
11, 2014, Robert Mohler, a homeless man, was sleeping inside a laundromat
on Penn Street, Reading. The owner of the laundromat had given Mr. Mohler
permission to take shelter in the business due to the cold. The laundromat
and surrounding area were monitored with security cameras. While Mr.
Mohler was asleep, Ana Ferrer-Reyes and Keith Allison entered the
laundromat and punched and kicked Mr. Mohler, who remained on the
* Former Justice specially assigned to the Superior Court.
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ground. As soon as the pair exited the laundromat, Mr. Mohler called 911.
The call abruptly ended when Ferrer-Reyes and Allison returned to the
laundromat in the company of Appellant and Irich Colon. The four cohorts
proceeded to viciously beat Mr. Mohler and also took his cell phone.
Colon testified at trial. She indicated that she encountered Appellant,
Ferrer-Reyes, and Allison, all of whom were acquainted with each other,
outside of the laundromat and, after Ferrer-Reyes represented that Mr.
Mohler had harassed her, the four people decided to assault the victim, by
repeatedly kicking and punching him while he was curled up on the floor.
Appellant used a wet-floor sign to inflict some blows. The entire attack was
captured on a videotape, which was shown to the jury.
When Reading police officers arrived at the scene, Ferrer-Reyes and
Allison were still near the laundromat. Reading Police Officer Vincent Leazier
saw them talking and then observed Ferrer-Reyes “miming as punching into
her hand --- going into an open hand and she was yelling, “Bop, bop, bop[.]”
N.T. Trial, 6/15/14, at 64-65. Officer Leazier testified that Ferrer-Reyes
said, “I f ed that n up.” Id. at 65. Officer Leazier stopped the pair and
placed Ferrer-Reyes under arrest as she had an open warrant. A search
incident to that arrest revealed that she was in possession of Mr. Mohler’s
cell phone. Allison was also arrested at the scene.
Due to the extent of his injuries, Mr. Mohler was immediately
transported to the hospital. The parties read the following stipulation into
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the record. Dr. Marc Lewbart was the emergency room physician working
for Saint Joseph’s Medical Center, where the victim was first transported at
12:30 a.m. on January 12, 2014. Mr. Mohler told Dr. Lewbart that had been
“kicked and punched in the chest, arm, face and head.” Id. at 88. The
victim was transferred to Reading Hospital and Medical Center at
approximately 2:15 a.m. The emergency room doctor at that facility, Dr.
Thomas Geng, Jr., would have testified that, during the attack, Mr. Mohler
suffered an acute subdural hematoma on the right cerebral hemisphere of
his brain and a small subdural hemorrhage at the left parietal region. Dr.
Geng also would have reported that an acute subdural hematoma is a clot of
blood that develops between the surface of the brain and the brain’s outer
covering and that an “acute subdural hematoma is a serious bodily injury.”
Id. at 89.
Immediately after the incident, the laundromat’s owner retrieved a
tape of the assault from the surveillance cameras surrounding the
establishment, and gave it to Reading police, who were unable to identify
Appellant and Colon. Police released the surveillance footage to the public
and received an anonymous tip that one of the assailants was Appellant.
Additionally, after Colon viewed the videotape, she immediately turned
herself into police and told them that she was involved in the assault and
that the other unidentified person on the videotape was Appellant, whom
Colon identified by his street name.
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Appellant was arrested, and, on February 14, 2014, Reading Police
Sergeant John M. Solecki and Criminal Investigator Aaron Demko conducted
an interview. The interview was recorded and that recording was shown to
the jury. After he was administered Miranda warnings, Appellant
repeatedly admitted to punching the victim as well as throwing a garbage
can at him. Mr. Mohler died after the incident and did not testify at trial.
Based on this evidence, on June 17, 2015, a jury convicted Appellant
of aggravated assault, simple assault, recklessly endangering another
person, and conspiracy to commit each of those crimes. On June 17, 2015,
Appellant was sentenced to an aggregate term of fifteen to forty years
imprisonment1 as to the aggravated assault and conspiracy to commit
aggravated assault convictions. On June 26, 2015, Appellant filed post-
sentence motions for a judgment of acquittal, a new trial, and to modify the
sentence. The trial court denied those motions, and Appellant filed a timely
pro se notice of appeal. Thereafter, Appellant was appointed another
lawyer, who filed a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Therein, the following issue was raised, “The
verdict was contrary to the sufficiency of the evidence.” Concise Statement
____________________________________________
1
Appellant had prior convictions for two burglaries, a robbery, a theft, and
delivery of heroin, and his prior record score was five. N.T. Sentencing,
6/17/15, at 9, 12.
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of Matters Complained of on Appeal, 8/26/15, at 1. In his brief, Appellant
presents two issues for our review:
A. Whether the evidence presented at trial was insufficient as a
matter of law wherein the Commonwealth’s evidence
presented at trial failed to establish the identification of
Appellant?
B. Whether the verdict was against the weight of the evidence
wherein the verdict is so contrary to evidence and shocks
one’s sense of justice where there was no credible testimony
as to Appellant’s identity?
Appellant’s brief at 4.
Appellant first avers that there was insufficient evidence to establish
that he was one of the attackers. He claims that Colon’s report that
Appellant was involved was not credible. He also suggests that the
recording of his confession “was wrought with errors,” which Appellant fails
to delineate, and he challenges the tape’s “authenticity and accuracy.”
Appellant’s brief at 10. In this context, we employ the following standard 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
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probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa.Super. 2016)
(emphasis added) (quoting Commonwealth v. Brooks, 7 A.3d 852, 856–
57 (Pa.Super. 2010)).
As the above language demonstrates, the jury was free to credit
Colon’s identification of Appellant as one of the people involved in the attack.
Additionally, the jury viewed the videotape and was able to assess whether
her identification of Appellant was believable. Finally, Appellant failed to
challenge at trial the admission of the recording of his confession. When the
compact disc depicting the interview was introduced into evidence, Appellant
said that he had, “No objection.” N.T. Trial, 6/15/14, at 94. He did not
argue that there were flaws in the recording nor did he question its
authenticity or accuracy.2 The recording of the confession, having been
____________________________________________
2
Appellant suggests in his brief that the entire recording system in the
police station was replaced as defective. However, the record indicates that
the camera and audio system was the same, but the recording device was
substituted for a different one “because we had those one-second blurps
(Footnote Continued Next Page)
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admitted into evidence without objection, must therefore be credited by this
Court under the applicable standard of review. The confession also
constituted sufficient evidence to identify Appellant as being involved in the
attack on Mr. Mohler. We therefore reject Appellant’s sufficiency challenge.
Appellant’s second allegation is that there was no credible evidence as
to Appellant’s identity, rendering his convictions against the weight of the
evidence. When we review a challenge to the weight of the evidence, we
examine the trial court's exercise of discretion in resolving the claim rather
than the underlying question itself. Commonwealth v. Leatherby, 116
A.3d 73, 82 (Pa.Super. 2015) (citation omitted). This form of review is
necessitated by the fact that the trial judge heard and saw the evidence
presented. Id. Indeed, "One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict was or
was not against the weight of the evidence and that a new trial should be
granted in the interest of justice." Id. Only when the verdict is "so contrary
to the evidence that it shocks one's sense of justice and the award of a new
trial is imperative so that right may be given another opportunity to prevail,"
will a new trial be warranted. Commonwealth v. Morales, 91 A.3d 80, 91
(Pa. 2014).
_______________________
(Footnote Continued)
that happened a couple times.” N.T. Trial, 6/15/14, at 103. There was no
indication that the recording was inaccurate due to the few one-second
delays in the flow of the recording.
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In connection with Appellant’s claim, we apply the following pertinent
principle: “The finder of fact—here, the jury—exclusively weighs the
evidence, assesses the credibility of witnesses, and may choose to believe
all, part, or none of the evidence.” Commonwealth v. Sanchez, 36 A.3d
24, 39 (Pa. 2011) (citation omitted); see also Commonwealth v. Page,
59 A.3d 1118, 1130 (Pa.Super. 2013) ("A determination of credibility lies
solely within the province of the factfinder."); Commonwealth v.
Blackham, 909 A.2d 315, 320 (Pa.Super. 2006) ("It is not for this Court to
overturn the credibility determinations of the fact-finder."). Thus, we are
not permitted to conclude that Colon was not believable when she testified
that Appellant took part in the assault.
In the instant case, the trial court addressed Appellant’s weight claim.
It concluded that the Commonwealth put forth ample evidence at trial to
prove that Appellant took part in the beating of Mr. Mohler. Trial Court
Opinion, 9/30/15, at 7. This evidence included the recording of Appellant’s
confession, Colon’s identification of Appellant as one of the assailants, and
the surveillance videotape capturing the assault. We can discern no abuse
of discretion on the part of the trial court in concluding the verdict was not
against the weight of the evidence.
Judgment of sentence affirmed.
Justice Fitzgerald Joins the Memorandum.
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Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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