J-S29040-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTONIO LAMBERT, :
:
Appellant : No. 2275 EDA 2020
Appeal from the Judgment of Sentence Entered September 17, 2020
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0502042-2001
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 21, 2021
Appellant Antonio Lambert1 appeals from the Judgment of Sentence2
entered in the Court of Common Pleas of Philadelphia County following his
conviction at a non-jury trial on the charges of third-degree murder,
conspiracy to commit robbery, robbery, firearms not to be carried without a
1
Appellant is also known as Terry Brown. See N.T. 1/10/18, at 4.
2
We note that Appellant purported to appeal the October 30, 2020, Order of
the trial court denying his post-sentence motion. Notice of Appeal, 11/30/20.
“In a criminal action, appeal properly lies from the judgment of sentence made
final by the denial of post-sentence motions.” Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation
omitted). We have corrected the caption accordingly.
*Former Justice specially assigned to Superior Court.
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license, carrying firearms on public streets in Philadelphia, and possession of
an instrument of a crime.3 After careful review, we affirm.
Appellant and co-defendant Miguel Garcia were initially tried together
before a jury on June 10, 2002, for the murder of Mary Edmonds (Decedent),
in 2001. Trial Court Opinion, 1/29/21, at 1. Appellant was found guilty of
first-degree murder, robbery, criminal conspiracy to commit robbery, and
possession of an instrument of crime. Appellant was sentenced to life without
the possibility of parole for first-degree murder and given lesser sentences, to
run concurrently on the remaining convictions. Id. at 1.
This Court vacated Appellant’s sentence on June 8, 2004, based upon a
violation under Bruton v. United States, 391 U.S. 123 (1968),4 and
remanded for a new trial. Commonwealth v. Brown, 853 A.2d 1029 (Pa.
Super. 2004). Id. at 2. However, our Supreme Court overturned this Court’s
ruling and reinstated Appellant’s sentence on June 26, 2007.
Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007).
3
18 Pa.C.S. §§ 2502(c), 903(a), 3701(a), 6106(a), 6108, and 907(a),
respectively.
4
The United States Supreme Court held in Bruton, “[t]hat where the
statement of a non-testifying co-defendant names the defendant as a
participant in the crime, even if the jury is instructed to consider the
confession only against the co-defendant as maker of the statement, the
defendant is denied his Confrontation Clause rights.” Commonwealth v.
Brown, 853 A.2d 1029, 1034-35 (Pa. Super. 2004) (citations and footnotes
omitted).
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Appellant filed a petition pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, on October 17, 2007, alleging ineffective
assistance of counsel. The petition was dismissed by the PCRA court on June
30, 2009, and Appellant did not seek review of this dismissal in this Court.
Appellant next filed a federal habeas petition in the United States District
Court for the Eastern District of Pennsylvania on August 31, 2009, claiming
prosecutorial misconduct regarding the alleged Bruton violation and
ineffective assistance of counsel. Id. This petition was denied on April 16,
2014. Brown v. Folino, No. 2:09-CV-3970-CDJ, 2014 WL 1489464 (E.D.Pa.
2014). Appellant sought review in the United States Court of Appeals for the
Third Circuit. On August 22, 2016, the Third Circuit overturned the
Pennsylvania Supreme Court’s 2007 ruling and held that Appellant was
entitled to a new trial. Brown v. Superintendent Greene SCI, 834 F.3d
506 (3rd Cir. 2016).
Appellant proceeded pro se, with the assistance of stand by counsel, to
a non-jury trial on September 15, 2020. The trial court summarized the
relevant evidence presented at trial as follows:
On the evening of February 23, 2001, [Appellant],
accompanied by two associates, Miguel Garcia and Anthony
Cheatham, shot and killed Mary Edmunds (“the Decedent”) during
the course of a robbery.
Miguel Garcia, a cooperating co-defendant, testified that on
the night of February 23, 2001, Garcia and Cheatham had been
out driving in the area of Northwest Philadelphia, looking to buy
marijuana. While driving around, the two encountered
[Appellant], known to Garcia and Cheatham, at the time, only as
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an acquaintance through a mutual friend. Garcia informed
[Appellant] they were looking to buy marijuana and Xanax and
planned to drive to North Philadelphia where they would be able
to buy the drugs. [Appellant] asked if he could go with them.
Once in North Philadelphia, the three arrived at a house
somewhere around North 7th Street. Garcia entered the house
alone to purchase Xanax and marijuana for the group. Once
Garcia returned to the car, [Appellant], Garcia and Cheatham each
took the Xanax, smoked some marijuana, and began joy riding
around North Philadelphia. Eventually, the three made their way
back toward Northwest Philadelphia and discussed buying more
marijuana to continue the night. Garcia told [Appellant] that he
did not have any more money so [Appellant] suggested they rob
someone. Garcia responded, “who?”, and [Appellant] said “the
first person you see.”
[Appellant], Garcia, and Cheatham stopped at a Hess Gas
Station on the corner of 15th Street and Cheltenham Avenue to
fuel up. The three then continued south on 15th Street, and within
yards of the gas station, came across the [D]ecedent walking
north, wheeling a shopping cart and carrying a purse. [Appellant]
instructed Garcia to stop the car. Garcia pulled over and
[Appellant] got out of the car. Garcia testified that he waited
about a minute after [Appellant] left the car before he followed
him. Garcia walked toward the back of the vehicle, and saw
[Appellant] struggling with [D]ecedent—the [D]ecedent facing
toward Garcia and [Appellant] facing away. Garcia specifically
noted that he saw the two “pulling back and forth” and a gun in
[Appellant’s] hand. Seeing the robbery was already underway,
Garcia got back inside the car. Seconds after returning to the car,
Garcia testified that he heard a single gunshot. [Appellant]
returned to the car. Garcia asked [Appellant], “what the fuck did
you do.” [Appellant] pointed the gun at Garcia and told him to
“drive the fucking car”. From there, Garcia drove himself,
[Appellant], and Cheatham to Garcia’s mother’s house.
After being at Garcia’s mother’s house for about ten to
fifteen minutes, the three left. Garcia picked up his friend,
Donavan Weary, also known as “Raheem”, and dropped Cheatham
off at his grandmother’s house. [Appellant], Garcia, and Weary
then drove to North Philadelphia to continue to smoke marijuana,
take more pills, and drink. According to Garcia, he, [Appellant],
and Weary eventually fell asleep in the car somewhere in North
Philadelphia. Garcia recalled waking up in the driver’s seat to
police cruiser lights coming up behind him. As all three were
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awakened, [Appellant] said to Garcia that he’s “not trying to go to
jail,” so Garcia drove off with the police in pursuit. After a brief
chase, Garcia’s car slipped on ice and crashed by the side of the
road. Once the car came to a stop, [Appellant] threw the gun into
Garcia’s lap. While trying to get out of the car, Garcia fumbled
with the gun but maintained possession of it and began to run,
tossing it several yards away as he ran.
Anthony Cheatham also testified at [Appellant’s] trial.
Cheatham claimed to remember very little of the incident so the
Commonwealth refreshed his recollection with his testimony from
the previous trial. Cheatham testified that he first met [Appellant]
on the night of the murder when he entered the car with
[Appellant] and Miguel Garcia. Cheatham recalled that the three
spent the day driving around and getting high on Xanax and
marijuana. Cheatham remembered waking up in the backseat of
Garcia’s car to the sound of gun shots. Neither Garcia nor
[Appellant] were in the car when he heard the shots, but returned
to the car within seconds and [Appellant] was carrying a gun.
[Appellant] then pointed the gun at Garcia and said “drive the
fucking car.” From there, Garcia drove off and Cheatham next
remembered being at his grandmother’s house.
Chief Inspector Daniel Ma[c]Donald testified that in the early
morning of February 24, 2001, while patrolling the area around
5th Street and Hunting Park Avenue, he observed a car traveling
without its headlights and proceeded to pursue it. The car pulled
over and came to a stop on the side of 5th Street, just short of
Hunting Park Avenue. Chief M[a]cDonald noticed that the car was
not shut off nor placed in park, but instead, remained with its
break lights on. He instructed his partner, Officer Brian Gress, to
wait in the police car. Almost immediately, the car fled and Chief
M[a]cDonald followed. After making a few quick turns, the car
slipped on a patch of ice, crashed into debris on the side of the
road, and became immobile.
Chief M[a]cDonald could see the driver of the vehicle, Miguel
Garcia, get out of the car and “fumble” with a silver revolver.
M[a]cDonald informed his partner that Garcia had a gun and
instructed him to pursue Garcia. When Chief M[a]cDonald
approached the vehicle, he found [Appellant] and Donovan Weary
struggling to get out of the car, and immediately apprehended
them. Shortly thereafter, Officer Gress notified Chief M[a]cDonald
that he had taken Garcia into custody as well.
Officer Brian Gress testified that while pursuing Garcia after
he fled on foot, Officer Gress observed him throw an unknown
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object into a backyard of 280 West Wingohocking Street. Officer
Gress chased Garcia for approximately two blocks before
apprehending him. Once Garcia was placed under arrest, Officer
Gress returned to the rear yard of 280 West Wingohocking Street
and recovered a set of car keys and a .38 caliber silver revolver.
The Commonwealth and [Appellant] stipulated that if Police
Officer John Cannon, the ballistician at the time of [Appellant’s]
original trial, testified, he would testify that the recovered revolver
contained three [fired] cartridge casings and three live rounds.
There was gunshot residue in the individual barrels. Moreover,
Officer Cannon received a bullet fragment recovered by the
medical examiner, from the decedent’s body, and determined that
it was fired from the revolver recovered from Garcia.
The Commonwealth and [Appellant] stipulated to the prior
trial testimony of medical examiner Dr. Preston being admitted
into evidence. Dr. Preston found that the cause of the decedent’s
death was a single bullet which entered her right upper breast,
traveled downward, exited the lower chest, reentered her
abdomen, passed through the liver, the pancreas and the bowel
and lodged just behind her left hip. The bullet was retrieved from
near the decedent’s left hip.
Trial Court Opinion, 1/29/21 at 4-7 (record citations omitted).
On September 17, 2020, the trial court found Appellant guilty of the
aforementioned crimes and sentenced him to seventeen (17) years to thirty-
four (34) years of incarceration for third-degree murder. No further sentence
was imposed on the remaining crimes. Appellant filed a post-sentence motion,
which was denied by the trial court on October 20, 2020, and he timely
appealed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
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On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved”5:
I. Should the Appellant be awarded an arrest of judgment on
each of the charges, where as here, the evidence was
insufficient to sustain the verdict?
II. Should the Appellant be awarded a new trial, where as here,
the evidence failed to establish the existence of a
conspiratorial agreement to commit robbery?
III. Should the Appellant be awarded a new trial where, as here,
the trial court abused it’s discretion in disallowing the
Appellant the funds to hire a handwriting expert?
Appellant’s Brief at 3.6
Initially, we note that challenges to the sufficiency of the evidence and
the weight of the evidence are two distinct challenges. When reviewing a
sufficiency of evidence claim, this Court is required to view all the evidence
admitted at trial in the light most favorable to the verdict winner, to determine
whether sufficient evidence was presented to allow the finder of fact to find
every element of the crime beyond a reasonable doubt. Commonwealth v.
Dunkins, 229 A.3d 622, 631 (Pa. Super. 2019) (citation omitted). Wholly
circumstantial evidence is sufficient to prove every element of the crime
5
Although Appellant proceeded pro se with the assistance of stand-by counsel
at trial, Appellant is represented by counsel before this Court.
6
We note with disapproval that Appellant’s brief was filed late, despite having
been granted an extension of time. Order, 3/18/21. Because the
Commonwealth has not moved for dismissal of the appeal pursuant to
Pa.R.A.P. 2188, we disregard Appellant’s non-compliance and address the
substantive issues on appeal. See Pa.R.A.P. 105(a).
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beyond a reasonable doubt. Id. The finder of fact is free to believe all, part
or none of the evidence presented. Id. In reviewing this claim, the appellate
court may not reweigh the evidence and substitute its judgment for that of
the factfinder. Id. at 632 (citation omitted). Where the evidence presented
at trial is insufficient to sustain a guilty verdict, a judgment of acquittal will be
awarded. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)
(citation omitted).
A challenge to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict. Widmer, 744 A.2d at 751. In
reviewing a claim that the verdict is against the weight of the evidence, this
Court is not to determine whether the verdict is against the weight of the
evidence, but is to review whether the trial court abused its discretion in ruling
on the weight claim. Dunkins, at 634 (citations omitted). The verdict of the
trial court may only be reversed where it is “so contrary to the evidence as to
shock one’s sense of justice.” Id. A successful challenge to the weight of the
evidence garners a new trial. Widmer, 744 A.2d at 751 (citation omitted).
Instantly, Appellant conflates his sufficiency and weight claims
throughout his concise statement and brief. In his concise statement, while
Appellant seeks a new trial, he alleges that the evidence was insufficient to
sustain the verdict. Rule 1925(b) Statement, 1/6/21, at ¶¶ 1, 3, 4. Likewise,
Appellant argues in his brief that he is entitled to arrest of judgment because
the evidence is insufficient to sustain the verdict and then argues he is entitled
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to a new trial because the evidence failed to establish the existence of a
conspiratorial agreement to commit robbery. Appellant’s Brief, at 6, 12.
The substance of the arguments raised by Appellant in his brief, as well
as the caselaw cited, highlight a sufficiency of the evidence challenge, rather
than a challenge to the weight of the evidence. Therefore, we will address
Appellant’s issues raised on appeal as challenges to the sufficiency of the
evidence.
Appellant claims that the testimony of Garcia and Cheatham was so
unreliable that it led to a verdict based upon nothing more than conjecture or
surmise. Appellant’s Brief at 6. Appellant maintains that the “evidence
adduced was so unreliable, contradictory and inconsistent that it is incapable
of supporting a verdict of guilty.” Id. at 7. In support of this argument,
Appellant relies upon Commonwealth v. Karkaria, 625 A.2d 1167 (Pa.
1993), wherein our Supreme Court reversed a conviction for forcible rape,
where the evidence, in its entirety, was so unreliable and contradictory that
the guilty verdict rendered could not have been based upon anything other
than conjecture and surmise.7
7The Commonwealth argues that Appellant waived this sufficiency claim
because he failed to enumerate which convictions and what elements of the
crime he is challenging in his Rule 1925(b) statement, thereby depriving the
trial court the opportunity to address the claim in its Rule 1925(a) opinion.
Commonwealth’s Brief at 14, n.2 (citing, Commonwealth v. Lemon, 804
A.2d 34, 27 (Pa. Super. 2002) (requiring a concise statement to specify the
crimes and elements challenged).
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In Karkaria, Ian Karkaria was found guilty of forcibly raping his 14-
year-old stepsister. This Court affirmed the judgment of sentence, and on
appeal to our Supreme Court, Karkaria argued that “the testimony presented
to the jury was so unreliable and contradictory that the verdict could only have
been arrived at through speculation and conjecture.” Karkaria, 625 A.2d at
1170.
While the Karkaria Court acknowledged that questions of credibility are
to be resolved by the finder of fact and the verdict will not be disturbed if the
evidence is credible, the Supreme Court recognized the following:
This concept, however, must be distinguished from an equally
fundamental principle, that a verdict of guilt may not be based
upon surmise or conjecture. Following this principle, courts of this
jurisdiction have recognized that where evidence offered to
support a verdict of guilt is so unreliable and/or contradictory as
to make any verdict based thereon pure conjecture, a jury may
not be permitted to return such a finding.
Karkaria, 625 A.2d at 1170 (citations omitted).
Even when viewed in the light most favorable to the Commonwealth,
our Supreme Court determined that the record was “riddled with
inconsistencies” and the victim’s testimony was “disturbingly vague”, casting
“serious doubt upon the jury’s ability” to find that the crime of rape occurred
during the time alleged. Karkaria, 625 A.2d at 1171. According to the victim,
the assaults took place when Karkaria babysat on Friday and Saturday nights,
and Karkaria’s brother Andre was never in the home at that time. Id.
However, the victim acknowledged that during the six-month period in 1984,
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Karkaria did not act as a babysitter, and evidence of record showed that Andre
was in the home every other weekend, and on alternate weekends. Id. The
only incident of intercourse of record occurred in 1981, despite the victim’s
description of numerous rapes. Id. Our Supreme Court concluded that the
evidence presented at trial was based on nothing more than speculation and
conjecture, and therefore, was so unreliable and contradictory that it was
incapable of supporting a verdict of guilty and was insufficient as a matter of
law. Id. at 1172.8
The instant matter is not a case where the trial court rendered a verdict
based solely upon vague and contradictory evidence that fails to establish the
elements of the crimes charged. While it is evident from the record that
portions of Garcia’s testimony were inconsistent and contradictory, the trial
court found Cheatham’s testimony credible, which corroborated Garcia’s
somewhat inconsistent testimony and provided independent evidence of
Appellant’s perpetration of these crimes. N.T. 9/17/20, at 123-24.
8We decline to find Appellant waived this sufficiency claim for failing to specify
the crimes and elements charged in his concise statement. Appellant’s Rule
1925(b) statement specifically states he is challenging the sufficiency of
evidence regarding all elements of all crimes charged. Moreover, although he
does not mention Karkaria specifically, and intermingles his sufficiency and
weight claims, he sets forth a challenge that the verdict was based upon
conjecture and surmise, which was the substance of the claim in Karkaria.
See Rule 1925(b) Statement, 1/6/21. Although Appellant’s concise statement
is not a model of concise artful drafting, we conclude he has preserved in his
brief the type of sufficiency claim encompassed by Karkaria.
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Garcia and Cheatham were in the vehicle with Appellant the night the
Decedent was shot. N.T. 9/16/20, at 39-41. It was Appellant who suggested
to Garcia that they rob the first person they encountered, and Garcia stopped
the vehicle at Appellant’s direction, upon seeing the Decedent with a purse on
her shoulder. N.T. 9/16/20, at 45-48. Garcia saw Appellant exit the vehicle
and engage in a physical altercation with the Decedent while attempting to
rob her at gunpoint. Id. at 49-52. Both Garcia and Cheatham testified that
Appellant was outside the vehicle when they heard gunshots. Id. at 52; N.T.
9/15/20, at 117-19;132. Both Garcia and Cheatham saw Appellant with a
firearm when he returned to the vehicle. Id. at 53; N.T. 9/15/20 at 120-21.
When Appellant returned to the vehicle, both Garcia and Cheatham saw
Appellant point the gun at Garcia and tell him to “drive the fucking car”. Id.
at 53; N.T. 9/15/20, at 133-34. Appellant threw the firearm into Garcia’s lap
when the vehicle crashed on the side of the road. N.T. 9/16/20, at 59-67.
The Commonwealth and Appellant stipulated that a purse was recovered near
the Decedent’s body at the crime scene. N.T. 9/17/20, at 80.
There was independent evidence that the revolver recovered from
Garcia contained three fired cartridge casings, three live rounds and gunshot
residue on the barrels. N.T. 9/17/2020, at 71-72. Moreover, the medical
examiner determined that the Decedent died as a result of a single bullet
wound and the bullet retrieved from the Decedent’s body was fired from the
revolver recovered from Garcia. N.T. 9/17/20, at 73-74.
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Appellant argues that the testimony of Garcia and Cheatham was not
credible because it was contradictory and inconsistent, thereby leading to a
verdict based upon conjecture and surmise. However, Appellant’s reliance on
Karkaria is misplaced. Appellant’s arguments attack the credibility of the
testimony, rather than whether the evidence offered established the crimes
charged. It is within the sole province of the trial court whether to believe all,
part or none of the testimony. Dunkins, 229 A.2d at 632. Although the trial
court determined that Garcia’s testimony emanated from a “corrupt source”
and was not wholly credible, the trial court did find the testimony of Cheatham
credible, which corroborated some of the testimony offered by Garcia. N.T.
9/17/20, at 123-24.
The present matter does not constitute an “exceptional circumstance”
wherein Karkaria is applicable. See Commonwealth v. Brown, 52 A.3d
1139, 1165-66 (Pa. 2012) (declining to apply Karkaria stating that “[o]ur
Court will not, on sufficiency review, disturb the finder-of-fact’s resolution
except in those exceptional instances …, where the evidence is so patently
unreliable that the jury was forced to engage in surmise and conjecture in
arriving at a verdict based upon that evidence”).
Accordingly, we conclude that the trial court’s decision to convict
Appellant of each of the crimes charged is supported by sufficient evidence.
Appellant next contends that he is entitled to a new trial “where the
evidence failed to establish the existence of a conspiratorial agreement to
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commit robbery.” Appellant’s Brief at 12; Rule 1925(b) Statement, 1/6/21,
¶4. Appellant argues that there was no evidence of a conspiratorial agreement
between he and Garcia. Specifically, Appellant contends that Cheatham
testified that he never saw a robbery or shooting; therefore, “merely because
[] Appellant may have been in the presence of Miguel Garcia outside the
vehicle when the shooting occurred isn’t sufficient to infer an agreement
existed.” Appellant’s Brief at 12.
The trial court addressed this issue as a challenge to the weight of the
evidence, finding that the “verdict was not so contrary to the evidence as to
shock one’s sense of justice.” Trial Court Opinion, 1/29/21, at 13-14.
Specifically, the trial court opined that while it believed only some of the
evidence, “nevertheless, the evidence overwhelmingly established the
[Appellant’s] guilt beyond a reasonable doubt.” Id. at 14.
The trial court determined that Appellant initiated the conspiracy to rob
the Decedent; ordered Garcia to stop the car; and exited the car, becoming
involved in a scuffle with the Decedent. Id. at 14. The trial court further
found that although Garcia followed Appellant out of the vehicle and was
caught with the gun, it mattered not who fired the shot because Appellant and
Garcia were involved in a conspiracy to rob the Decedent. Id. Finally, the
trial court credited the testimony of Cheatham that although Garcia and
Appellant were outside the vehicle when the shot was fired, it was Appellant
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who returned to the vehicle with the gun and pointed it at Garcia stating,
“drive the fucking car.” Id.
While Appellant appears to challenge to the weight of the evidence by
requesting a new trial, the substance of his argument continues to challenge
the sufficiency of the evidence, except this time he focuses on the single
charge of conspiracy to commit robbery. Appellant argues that “[i]f, as the
trial court said, it was a conspiracy to commit robbery, then the evidence
would have to meet the criteria to establish a conspiracy.” Appellant’s Brief,
at 12. Because Appellant argues that the evidence is insufficient to establish
a conspiracy, he is asking this Court to review the sufficiency of the evidence
rather than the weight of the evidence. See Dunkins, 229 A.3d at 631.
To convict an individual of conspiracy,
[T]he trier of fact must find that: (1) the defendant intended to
commit or aid in the commission of the criminal act; (2) the
defendant entered into an agreement with another (a “co-
conspirator”) to engage in the crime; and (3) the defendant or
one or more of the other co-conspirators committed an overt act
in furtherance of the agreed upon crime. 18 Pa.C.S.[A]. §903.
The essence of a criminal conspiracy, which is what distinguishes
this crime from accomplice liability, is the agreement made
between the co-conspirators.
Mere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to establish
that a defendant was part of a conspiratorial agreement to commit
a crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his co-
conspirator. Direct evidence of the defendant’s criminal intent or
the conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
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the relations, conduct or circumstances of the parties or overt acts
on the part of the co-conspirators. Once the trier of fact finds that
there was an agreement and the defendant intentionally entered
into the agreement, that defendant may be liable for overt acts
committed in furtherance of the conspiracy regardless of which
co-conspirator committed the act.
Id. (citations omitted).
Prior to stopping for gas, Appellant suggested to Garcia that they
purchase more marijuana. N.T. 9/16/20, at 45. When Garcia told Appellant
he did not have any money to buy marijuana, Appellant said to him, “let’s
take someone’s money, then.” Id. at 46. Garcia asked Appellant “who?” and
Appellant responded, “the first person you see.” Id. Garcia drove until
Appellant directed him to stop on 15th Street, where they saw the Decedent
with a purse on her shoulder. Id. at 48. Garcia observed Appellant struggling
with the Decedent, heard a gunshot, and observed Appellant with a gun when
he returned to the vehicle. Id. at 51-53. Cheatham testified that Appellant
told Garcia to stop the car. N.T. 9/15/20, at 129-131. When Garcia stopped
the vehicle, Cheatham saw Appellant and Garcia get bout of the car, and then
he heard gunshots. Id. at 118. When Appellant got back in the vehicle,
Cheatham saw Appellant point the gun at Garcia and tell him to “drive the
fucking car.” Id. at 133 .
While it is difficult to prove the existence of a formal agreement to
engage in a conspiracy to commit a crime, the evidence of record, both direct
and circumstantial, provided proof that Appellant intended to commit the
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crime with his co-conspirator. The trial court did not have to identify the
shooter because once the trial court determined that Appellant was part of a
conspiracy, Appellant was liable for any overt acts committed in furtherance
of the conspiracy, regardless of which co-conspirator committed the act. See
Dunkins, 229 A.3d at 633.
Although the trial court found that Garcia’s testimony was questionable
because it came from a “corrupt source”, the trial court believed Garcia when
he testified that Appellant suggested they commit a robbery, and he agreed.
It was within the sole province of the trial court, as the factfinder, to weigh
this evidence and the trial court was free to find all, none, or part of Garcia’s
testimony credible. Id. at 634.
Viewing the evidence in the light most favorable to the Commonwealth,
we conclude that the trial court’s decision to convict Appellant of conspiracy
to commit robbery is supported by sufficient evidence.
Finally, Appellant contends that the trial court abused its discretion in
denying him funds to hire a handwriting expert. Appellant’s Brief at 14. By
way of background, Appellant, acting pro se with the assistance of stand-by
counsel, argued during a pre-trial motion hearing that he received an unsigned
letter on or about March 26, 2019, purportedly written by Garcia, wherein
Garcia admitted his guilt in this matter. N.T. 8/13/2020, at 17. According to
Appellant, the letter set forth a “plan to orchestrate, mastermind and concoct
to frame the [Appellant] in order so that [Garcia] can get released [from
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prison]… .” Id. Appellant believed Garcia wrote this letter using his left-hand
“in an attempt to disguise his writing.” Id. Appellant requested $5,800 to
hire a handwriting expert to analyze the letter and use it to impeach Garcia’s
credibility at trial. Id. Appellant intended to compare the handwriting in a
letter written by Garcia in 2008 to the handwriting in the 2019 letter in order
to prove that the 2019 letter was written by Garcia. Id.
The trial court concluded that because this was a non-jury trial, the trial
court could determine the credibility of Garcia’s testimony regarding whether
he wrote this letter, without the assistance of an expert. N.T. 8/13/2020 at
18. The trial court stated that this was not a case where an unknown
individual was confessing to a crime. Id. The trial court explained that Garcia
was a co-defendant in this matter, the Commonwealth intended to call him as
a witness, and Appellant would have an opportunity to cross-examine him.
Id. Finally, the trial court expressed doubt as to whether Appellant could
successfully prove that the 2019 letter was written by Garcia by comparing
the handwriting to a letter Garcia wrote in 2008. Id. Therefore, the trial court
denied Appellant’s request for funds to hire a handwriting expert. Id.
In considering the merits of this claim, the Court is guided by the
following principles:
It is well-established that indigent defendants have a
right to access the same resources as non-indigent
defendants in criminal proceedings. The state has an
affirmative duty to furnish indigent defendants the
same protections accorded those financially able to
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obtain them. Procedural due process guarantees that
a defendant has the right to present competent
evidence in his defense, and the state must ensure
that an indigent defendant has fair opportunity to
present his defense.
Commonwealth v. Tighe, 184 A.3d 560, 580 (Pa. Super. 2018) (citations
omitted). There is no obligation to provide public funds to an indigent
defendant to hire an expert simply because the defendant requests these
funds. Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa. Super. 2005)
(citations omitted). “There must be some showing as to the content and
relevancy of the proposed expert testimony before such a request will be
granted.” Id. at 842 (citation omitted). Lastly, “[t]he provision of public
funds to hire experts to assist in the defense against criminal charges is a
decision vested in the sound discretion of the court and a denial thereof will
not be reversed absent an abuse of that discretion.” Commonwealth v.
Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008) (citation omitted).
Applying the foregoing principles, we conclude Appellant has failed to
establish that he was entitled to funds to hire a handwriting expert. As the
trial court explained, it was not essential to Appellant’s defense that he have
the letter analyzed by an expert to challenge the credibility of Garcia’s
testimony. N.T. 8/13/20 at 118-119. Appellant used the March 29, 2019,
letter on cross-examination at the non-jury trial to challenge Garcia’s
credibility. N.T. 9/16/20 at 144-45.
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Garcia denied writing the letter and as the trial court opined, “[t]he
speculative testimony of an expert would not have offered any more than the
Defendant’s own cross examination of Garcia already did, particularly in light
of the claim that Garcia supposedly wrote the letter with his non-dominant
hand.” Trial Court Opinion, 1/29/21, at 16. The trial court, as the trier of
fact, determined that Garcia’s testimony was not credible and rendered its
guilty verdict based upon the credible testimony of Cheatham. N.T. 9/17/20
at 123-24. Therefore, an expert’s opinion as to who wrote this letter would
not be relevant. Consequently, we conclude that the trial court did not abuse
its discretion in denying Appellant’s request for funds for a handwriting expert.
Based on the foregoing reasons, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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