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Commonwealth of Pennsylvania v. Bruce Smith

May 1, 2013

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
BRUCE SMITH APPELLANT



Appeal from the Judgment of Sentence of September 27, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011896-2010

The opinion of the court was delivered by: Wecht, J.:

J-A32029-12

BEFORE: MUSMANNO, J., WECHT, J., and COLVILLE, J.*fn1

OPINION BY WECHT, J.:

Bruce Smith ("Appellant") appeals from the September 27, 2011 judgment of sentence. After a jury convicted Appellant of criminal conspiracy,*fn2 fleeing or attempting to elude a police officer,*fn3 three counts of recklessly endangering another person ("REAP"),*fn4 and accident involving damage to unattended vehicle,*fn5 *fn6 the trial court sentenced Appellant to an aggregate sentence of seventeen to thirty-four years' incarceration. For the reasons that follow, we vacate the judgment of sentence, and we remand for a new sentencing hearing.

Appellant's cousin, Melvin Johnson, was murdered shortly before the events that ultimately led to Appellant's arrest in this case. Appellant, along with brothers William and Daniel Hopkins, believed that Johnson's shooter was a man named Sir John Withrow ("Withrow").

On April 3, 2010, while drinking, Appellant, the Hopkins brothers, and someone known only as "Little Hodge," became quite upset about the murder. Appellant eventually told the police that the more that the quartet talked about the murder, the more their anger escalated. The group left the house where they were drinking and went to a bar, where they continued to drink for another forty-five minutes. They left the bar and piled into a white SUV. William Hopkins was driving, Appellant was in the passenger seat, and the other two men were in the back seat. They drove to the West End section of Pittsburgh, to a location where either William Hopkins or Little Hodge claimed to have seen Withrow. Eventually, William Hopkins claimed to see Withrow sitting in a car in front of his residence. They pulled around a corner, and the Hopkins brothers exited the SUV.

Patricia Kowaluk was walking down the street in the West End with Withrow, her son, and her son's cousin. Gunshots rang out. Ms. Kowaluk was shot in the lower back. She was unable to see who fired the shots. However, a nearby resident, Benjamin Obusek, heard the shots and grabbed his own weapon. Obusek fired at the gunmen, hitting one of them in the arm.

Appellant was still in the SUV when the Hopkins brothers returned. William Hopkins was shot in the arm. Once everyone got back into the SUV, they hastened from the scene. The crew met up with another individual in a different part of the West End. This individual picked up William Hopkins and Little Hodge, and proceeded to a local hospital.

Appellant drove the SUV away from the area. A police bulletin was issued for the white SUV. The police spotted the SUV and attempted to stop the vehicle. However, Appellant did not stop. Instead, he drove up to the Mount Washington area of Pittsburgh, where he struck two vehicles. The police continued to chase the SUV until Appellant struck a police car and came to a stop. Blood samples from inside the SUV and at the scene of the shooting were submitted for DNA testing. The samples matched William Hopkins.

Based upon this evidence, Appellant was convicted of the above- delineated offenses. At all relevant times, Appellant was represented by an appointed lawyer from the Allegheny County Public Defender's Office. On September 27, 2011, before being sentenced, Appellant attempted to complain about that attorney. However, before Appellant could explain his dissatisfaction with his lawyer, the trial court interrupted Appellant and told Appellant that he should "suck it up." Notes of Testimony ("N.T."), 9/27/2011, at 2. The court further instructed Appellant to "[t]ake it up to the Superior Court. Tell them about your rights. Don't tell me. I'm not interested." Id. at 2-3. The trial court then proceeded to sentence Appellant to seventeen to thirty-four years in prison. The trial court also sentenced Appellant to pay $1,000 in restitution.

On October 27, 2011, Appellant filed a notice of appeal. The following day, pursuant to Pa.R.A.P. 1925(b), the trial court directed Appellant to file a concise statement of errors complained of on appeal. Appellant timely complied. On March 3, 2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant now raises four issues for our consideration:

1. Was [Appellant's] Pennsylvania and United States constitutional right to counsel [] violated when, for sentencing on September 27, 2011, the court compelled [Appellant] to use Attorney Dugan over his objection?

2. Was the imposition of the sentence of $1,000.00 restitution illegal where the court awarded restitution in a speculative amount not supported by the record, did not consider [Appellant's] ability to pay restitution and failed to direct how the restitution should be paid?

3. Did sufficient evidence exist to find [Appellant] guilty of conspiracy to commit aggravated assault?

4. Was sufficient evidence presented on the charge for damage to vehicle?

Brief for Appellant at 6.

We begin with Appellant's sufficiency claims because, if successful, they would moot the sentencing claims. See Commonwealth v. Yanoff, 690 A.2d 260, 263 (Pa. Super. 1997) (the proper remedy for a successful sufficiency claim is discharge, not a new trial). "Our well-settled standard of review when evaluating a challenge to the sufficiency of the evidence mandates that we assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner." Commonwealth v. Whitacre, 878 A.2d 96, 99 (Pa. Super. 2005). We must determine whether there is sufficient evidence to enable the fact-finder to have found every element of the crime beyond a reasonable doubt. Commonwealth v. Lambert, 795 A.2d 1010, 1014-15 (Pa. Super. 2002) (internal citations and quotation marks omitted).

In applying the above test, we may not weigh the evidence and substitute our judgment for that of 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 ...


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