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[U] Commonwealth v. Graham

Superior Court of Pennsylvania

October 30, 2013



Appeal from the Judgment of Sentence Entered May 30, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000877-2010




Appellant, Robert Graham, appeals from the judgment of sentence of an aggregate term of 11 – 22 years' incarceration following his conviction for robbery and related offenses. Appellant now challenges the sufficiency and weight of the evidence supporting his identity as the perpetrator of the robbery, and he raises two evidentiary claims. In addition, Appellant claims the trial court abused its discretion in denying his request for a Frye[1] hearing to challenge the Commonwealth's fingerprinting expert. Finally, Appellant, an African American, claims a Batson[2] violation occurred when the Commonwealth improperly utilized a peremptory challenge to exclude the only African American in the jury pool. After careful review, we affirm. The trial court summarized the facts adduced at trial as follows:

On June 22, 2009 at approximately 2:20 a.m., an individual wearing sunglasses and a camouflaged sweatshirt with the hood pulled up entered the Uni-Mart on West Fourth Street [in Williamsport] and approached the clerk, Debra Almashy, who was behind the counter doing some paperwork. The clerk asked, "Can I help you?" The individual pulled out a handgun and demanded that the clerk open the register. The clerk opened the register and placed the cash drawer on the counter. The robber grabbed the back of the cash drawer with his left hand and removed $117 in cash, but no coins. The robber then told the clerk to open the safe. When the clerk told him that she couldn't, the robber threatened to shoot her. Again, the clerk told the robber that she couldn't open the safe. The robber then demanded cigarettes. When the clerk started to grab packs of cigarettes, the robber said, "No, cartons." The clerk placed 10 cartons of cigarettes on the counter. The robber went through them and took 5 cartons of Newport cigarettes and left. The clerk immediately called the police. According to the store's surveillance videotape, the entire incident lasted approximately one minute and eleven seconds.
The police responded to the Uni-Mart. As part of their investigation, the police dusted for fingerprints. Latent fingerprints were obtained from the cash drawer and two cartons of cigarettes. The latent prints were sent to the Pennsylvania State Police Wyoming Regional Laboratory for analysis. Sergeant Floyd Bowen, who analyzed the latent prints, determined that the latent fingerprint on the back of the cash drawer matched Defendant's left thumb print.
About ten months after the incident, the clerk saw a photograph in a newspaper article and recognized the person in the photograph as the individual who robbed her.
Defendant was arrested and charged with robbery by threatening to inflict serious bodily injury, robbery by threatening to inflict bodily injury, theft by unlawful taking, receiving stolen property, terroristic threats, and possessing an instrument of crime.

Post Sentence Motion Opinion and Order (PSMO), 9/11/12, at 1 – 2.

On November 23, 2010, Appellant filed an omnibus pre-trial motion requesting, inter alia, a Frye hearing to challenge the admissibility of the Commonwealth's expert testimony on the application of latent fingerprint analysis in this case. The trial court denied Appellant's motion for a Frye hearing in an Opinion and Order dated February 4, 2011. Pre-Trial Opinion and Order (PTO), 2/4/11, at 6. Appellant's jury trial was held on March 5, 7, and 8 of 2012. Following his conviction on all counts, Appellant was sentenced to an aggregate term of 11 – 22 years' incarceration on May 30, 2012. Appellant subsequently filed post-sentence motions which were entertained by the trial court at a hearing held on July 20, 2012. The trial court denied the post-sentence motions on September 11, 2012. PSMO at 12 – 13. On September 24, 2012, Appellant filed a timely notice of appeal. He submitted a timely Pa.R.A.P. 1925(b) concise statement on October 29, 2012. The trial court filed its Pa.R.A.P. 1925(a) opinion on February 11, 2013, in which the court incorporated the PTO and PSMO as dispositive of Appellant's claims of error. Trial Court Opinion (TCO), 2/11/13, at 1.

Appellant now presents the following questions for our review:

1. Whether the Commonwealth failed to provide sufficient evidence to prove [Appellant]'s guilt since the cash drawer was never sent for proper fingerprint analysis and one witness at the scene was never called to testify[?]
2. Whether the verdict issued was against the weight of the evidence since the cashier at the convenience store was inconsistent in her testimony and based her identification on a newspaper story[?]
3. Whether the court erred in failing to allow testimony that … Appellant was employed at the time of the robbery and allowing the affiant to use inexact methods to calculate the height of the [robber?]
4. Whether the court erred in the denial of a Frye hearing regarding expert testimony in fingerprinting[?]
5. Whether the court erred in determining that … no Batson claim existed after the Commonwealth struck the only African-American juror in the jury panel[?]

Appellant's Brief, at 5.

Appellant's claims will be addressed ad seriatum.

Sufficiency of the Identity Evidence

Appellant claims there was not sufficient evidence to convict him as the perpetrator of the robbery because the cash drawer was not sent for proper fingerprint analysis and because a witness was not called to testify. Our review of sufficiency claims is governed by a well-established standard and scope of review:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in ...

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