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Commonwealth of Pennsylvania v. Jeffrey Orr

December 19, 2011

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JEFFREY ORR, APPELLANT



Appeal from the Judgment of Sentence March 10, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007600-2008

J-E03003-11

2011 PA Super 272

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, PANELLA, ALLEN, LAZARUS, AND MUNDY, JJ.

OPINION BY GANTMAN, J.:

Appellant, Jeffrey Orr, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for robbery, conspiracy to commit robbery, and possessing instruments of crime ("PIC").*fn1 Appellant asks us to determine whether the Commonwealth presented sufficient evidence to sustain his convictions or, alternatively, whether his convictions are against the weight of the evidence, where George Thompson ("Victim") did not positively identify Appellant as the perpetrator in later proceedings. We hold the Commonwealth presented sufficient evidence to support Appellant's convictions, and the court correctly found Appellant's convictions were not against the weight of the evidence, given the circumstantial evidence linking Appellant to the crimes charged, which also corroborated Victim's unequivocal identification of Appellant offered shortly after the robbery. Accordingly, we affirm the judgment of sentence.

The relevant facts and procedural history of this case are as follows. On February 8, 2008, at approximately 10:30 p.m., Victim was walking home on the 2800 block of Jasper Street in South Philadelphia. As he was walking, Victim noticed two young men sitting on opposite sides of the street. When Victim passed the young men, they stood up and started to follow Victim. Victim began to run, but the two men chased after him, shouting: "Hold it. Don't move. Don't move, old head." Victim observed both men had guns in their hands, so Victim stopped and raised his hands above his head. The two men continued to yell: "Don't move. Give me money." As Victim stood still, the shorter of the two men stood in front of Victim and pointed a gun at Victim, while the taller of the two men stood behind Victim. Although Victim could not see if the taller man was holding a gun to Victim's back, Victim presumed he was. The two men patted down Victim, and the shorter man said: "Give me your jacket." Victim complied, removed his jacket, and dropped it on the ground. Victim's jacket contained, inter alia, his house keys, cell phone, glasses, and exactly twenty-six dollars ($26.00). As the men patted down Victim, they saw his wallet, so Victim removed his wallet and threw it on the ground. At one point, the shorter man swung his gun at Victim's face. Victim ducked and put his hand up to block the gun; the gun struck and injured Victim's finger. The men picked up Victim's belongings and fled together toward Somerset Street.

After the robbery, Victim ran to his neighbors' houses for help but no one responded. Consequently, Victim was forced to "break into" his own house, as the men had stolen his house keys. Victim immediately called the police, and Officer Denise Flynn arrived at Victim's house within five minutes of Victim's call. Victim described the robbers to Officer Flynn, recalling both men appeared to be in their twenties, with light complexions, and carried guns. Victim described the shorter man as approximately 5'3" or 5'4" and Hispanic. Victim explained the taller man, who stood behind Victim during the robbery, was approximately 5'9", had a lighter complexion than the shorter man, had a red beard, and was wearing a camouflage-patterned hooded jacket and gray pants. Officer Flynn put out a flash description of the suspects. Approximately five minutes later, Officer Erik Pross reported he was holding two men matching the descriptions of the suspects at the 2800 block of Boudinot Street, about three and one-half blocks away from Victim's home.*fn2

Officer Flynn took Victim in her police vehicle to the location where Officer Pross was holding the suspects. Officer Flynn testified that when she asked Victim to look at the men, Victim positively identified Appellant as the taller man involved in the robbery, exclaiming: "Yes. That's him. That's the guy. That's the guy that did it." Officer Flynn asked Victim if he was certain of his identification of Appellant, and Victim replied affirmatively. Appellant was light-skinned, had a red beard, was in his twenties, and wore a gray/black camouflage hooded jacket and gray pants when Victim identified him. Victim also stated the shorter man Officer Pross had detained was not the other man involved in the robbery. Subsequently, Officer Pross arrested and searched Appellant. Officer Pross recovered exactly twenty-six dollars ($26.00) from Appellant's person.

The Commonwealth charged Appellant with robbery and related offenses. The court held a bench trial on January 28, 2009. Following trial, the court convicted Appellant of robbery, conspiracy to commit robbery, and PIC. Appellant proceeded to sentencing on March 10, 2009. Prior to sentencing, Appellant made an oral post-trial motion challenging the sufficiency and weight of the evidence, which the court denied. Thereafter, the court sentenced Appellant to an aggregate term of five (5) to ten (10) years' imprisonment, plus five (5) years' probation. On March 20, 2009, Appellant timely filed a post-sentence motion, which the court denied on April 21, 2009. On May 19, 2009, Appellant timely filed a notice of appeal. On September 29, 2009, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on October 19, 2009.

On January 28, 2011, a panel of this Court reversed Appellant's judgment of sentence, with one dissent. The majority decided Victim's identification of Appellant based only on Appellant's clothing and appearance was so inherently unreliable that the evidence presented was insufficient to sustain Appellant's convictions, particularly where Victim did not positively identify Appellant out of context, from a photo display, a later line-up, or in post-incident court proceedings. The dissent maintained the Commonwealth had presented sufficient circumstantial evidence linking Appellant to the crimes charged and to sustain Appellant's convictions. On March 1, 2011, the Commonwealth filed a petition for en banc reargument, which this Court granted on April 4, 2011.

Appellant raises the following issues for our review:

WAS NOT THE EVIDENCE INSUFFICIENT TO CONVICT [APPELLANT] WHERE THE COMMONWEALTH'S ONLY EVIDENCE WAS THE TESTIMONY OF POLICE OFFICERS THAT THE COMPLAINING WITNESS IDENTIFIED [APPELLANT] SHORTLY AFTER THE INCIDENT, BUT WHERE THE COMPLAINING WITNESS MADE NO SUBSEQUENT IDENTIFICATIONS AND TESTIFIED AT TRIAL THAT HE IDENTIFIED [APPELLANT] BASED SOLELY ON HIS CLOTHING AND BEARD, AS HE NEVER SAW THE PERPETRATOR'S FACE AND THEREFORE COULD NOT IDENTIFY [APPELLANT] AS BEING INVOLVED IN THE ROBBERY?

WAS NOT [APPELLANT'S] CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE TO SUCH A DEGREE AS TO SHOCK THE CONSCIENCE AS THE COMPLAINING WITNESS TESTIFIED REPEATEDLY AND UNEQUIVOCALLY THAT HE COULD NOT IDENTIFY [APPELLANT] AS ONE OF THE

PEOPLE WHO COMMITTED THIS CRIME, AND WHERE THE COMPLAINING WITNESS DID NOT IDENTIFY [APPELLANT] IN A LINE-UP PROCEDURE, AT A PRELIMINARY HEARING, OR AT TRIAL, AND THUS THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO SET ASIDE THE VERDICT AND GRANT A NEW TRIAL?

(Appellant's Brief at 4).

For purposes of disposition, we combine Appellant's issues. Appellant argues Victim testified repeatedly he was not able to view the face of the man who stood behind him during the robbery. Appellant asserts Victim saw the taller perpetrator for only a brief moment from across the street before the robbery began. Appellant emphasizes Victim did not positively identify Appellant as the perpetrator from a photo array on the night of the robbery following Appellant's arrest, at a later line-up, at the preliminary hearing, or at trial.*fn3 Appellant insists Victim described the taller perpetrator as 5'8" or 5'9", but Appellant is actually 6'2". Appellant contends Victim admitted at trial that Appellant is much taller than the man who robbed him. Appellant avers Officer Flynn was the only person to testify as to Victim's positive identification of Appellant immediately following the robbery, and Victim clarified at trial he had identified Appellant based only on the clothing he was wearing and a similar red beard. Appellant maintains an identification based solely on clothing is insufficient to sustain a conviction. Appellant claims Officer Pross testified the flash sent over the police radio described the perpetrator as wearing a green camouflage jacket, but Appellant's jacket was gray/black camouflage. Appellant complains the Commonwealth did not present evidence of the denominations of the twenty-six dollars recovered from Appellant's person, compared to the denominations of the money stolen from Victim. Appellant highlights that Officer Pross did not recover Victim's jacket, wallet, house keys, glasses, or cell phone from Appellant's person. Appellant suggests there is no evidence in the record of witness intimidation in this case. Alternatively, Appellant declares the trial court gave undue weight to Officer Flynn's testimony with respect to Victim's identification of Appellant very soon after the robbery. Appellant concludes the Commonwealth failed to present sufficient evidence to sustain Appellant's convictions or, alternatively, Appellant's convictions are against the weight of the evidence; and this Court must reverse Appellant's judgment of sentence and discharge him, or grant him a new trial. We disagree.

When examining a challenge to the sufficiency of the evidence:

The standard we apply...is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact- finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011) (quoting Commonwealth v. B. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (emphasis added)). "This standard is equally applicable in cases where the evidence is circumstantial, rather than direct, provided that the combination of evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Cox, 546 Pa. 515, 528, 686 A.2d 1279, 1285 (1996), cert. denied, 522 U.S. 999, 118 S.Ct. 567, 139 L.E.2d 407 (1997).

Additionally, the following principles apply to our review of a weight of the evidence claim:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the...verdict if it is so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999)[, cert. denied, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42 (2000)]. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (some internal citations omitted).

Section 3701 of the Crimes Code defines the crime of robbery as follows:

§ 3701. Robbery

(a) Offense defined.―

(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

(2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S.A. § 3701(a)(1)(ii), (a)(2). Section 907 of the Crimes Code defines the crime of possessing instruments of crime in relevant part as follows:

§ 907. Possessing instruments of crime

(a) Criminal instruments generally.--A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

(d) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Weapon."--Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.

18 Pa.C.S.A. § 907(a), (d). Section 903 of the Crimes Code defines the crime of criminal conspiracy in relevant part as follows:

§ 903. Criminal Conspiracy

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of ...


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