February 6, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JEROD JACKSON, Appellant
Appeal from the Judgment of Sentence April 8, 2013, In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001863-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.
Jerod Jackson appeals from the aggregate judgment of sentence of ten to thirty years imprisonment that was imposed after a jury found him guilty of six counts each of robbery, simple assault, reckless endangerment, and unlawful taking. Appellant claims that the evidence was not sufficient to establish that he was the perpetrator of the crimes in question. We reject that challenge and affirm.
The trial court provided a comprehensive outline of the Commonwealth's proof presented:
On August 25, 2011, Patty Malec was a teller at the Parkvale Bank working a regular shift, 8:30 to 4:30. (N.T. 31). At approximately 2:35 to 2:40 P.M., she was seated at her teller's station approximately 15 to 20 feet from the door, watching the door. (N.T. 32). Malec observed an individual enter the bank wearing dark clothing, a bandana concealing the lower part of his face, and a hoodie pulled tight around his face. (N.T. 32, 33). The individual had a gun in his hand. He approached Malec, pointed the gun directly at her and told her to give him the money or he would shoot her. (N.T. 33, 34). Malec was fearful so she gathered up the money at her station, gave it to the individual. Although most of the robber's face was covered Malec could distinguish that the robber was a black male. (N.T. 40). The robber then moved on to the next teller, threatening each teller in turn with the gun. The individual then went to the drive-thru area of the bank and demanded and received the money from the drive-thru tellers.
Susan Toth was working in the drive thru and observed the robber entering the bank and while inside the bank. (N.T. 63). She described him as a black male approximately six feet tall. (N.T. 67).
The robber put the gun to Teller Colleen Tignanelli's head while demanding the money from her station. (N.T. 76, 77). She could tell that the robber was a black man. (N.T. 76).
He held the gun within six inches of Pandy Phillabaum's chest and stuck her in the arm with the gun when she hesitated in getting the money from her station. She could tell that he was a black man. (N.T. 52).
According to the bank manager, Lisa Nucci, the defendant obtained a total of $11, 130.00, the property of Parkvale Bank. (N.T. 87). From the surveillance video she determined that the robber was in the bank for one minute and ten seconds. (N.T. 94). She could see that the robber was a black man about six feet tall.
All of the tellers provided similar descriptions of the robber and all identifying his race as black. (N.T. 40, 55, 56, 67, 70, 76, 87, 104-106).
Tonya Roby, the owner of a tanning salon located across the street from the Parkvale Bank, observed a small red car pull into the parking lot of a business adjoining the bank. (N.T. 18, 19). She observed an individual exit the passenger side of the vehicle and walk toward the bank. The individual was dressed all in black with a hoodie and mask covering his face up to his eyes. (N.T. 21). Within two to three minutes the individual exited the bank carrying a bag and quickly returned and entered the passenger side of the red vehicle. (N.T. 24, 25).
When the individual entered the bank, Tonya alerted her boyfriend, Jerry Hough, that she believed that the bank was being robbed. (N.T. 113). A couple of minutes later Jerry Hough observed an individual dressed in black run out of the bank, across the parking lot and enter the passenger side of a little red car. He observed as the car drove away and turned on Route 166. He could see that the license plate on the red car was covered with a plastic bag. (N.T. 116, 117).
Jerry Hough and Don Huntsburger jumped into a pickup truck and followed after the red car. (N.T. 118, 119). Hough observed the vehicle turn off of Route 166 onto Simpson Manor Road toward the Hunter's Ridge apartment complex. They briefly lost sight of the vehicle in Hunter's Ridge but drove toward the far end of the Hunter's Ridge complex where they located the vehicle. (N.T. 120, 121). They noted that the vehicle still had a bag concealing the license plate. They observed a Caucasian man and woman walking away from the area where the vehicle was parked. Within minutes, Hough met with two police officers who responded to the scene. He identified the vehicle for the police and pointed out the two individuals seen walking from the area of the vehicle. The police apprehended Robert P. Lilley, Jr., and his girlfriend, Jessica Sullivan. (N.T. 183).
Robert Lilley at first denied any involvement in the robbery, but later admitted that he participated in the robbery by transporting the defendant to the Parkvale Bank in his red Cavalier.
Lilley testified at trial that he had been buying drugs over several years at the Hunter's Ridge complex from the defendant, who he knew as "New York." He stated that in August 2011 he owed defendant approximately $1500.00. (N.T. 146). Defendant prevailed upon Lilley to provide him with transportation in Lilley's vehicle, indicating that in exchange the debt Lilley owed would be eliminated. (N.T. 151). When the defendant got into his red Cavalier vehicle, Lilley noted that he had a gun in the waistband of his pants. Lilley identified the weapon as a black, semiautomatic handgun. (N.T. 153, 154). Upon arrival at the vicinity of the Parkvale Bank, defendant put on gloves, tied a bandana over the bottom half of his face and pulled the strings of his hoodie to conceal his face and exited the vehicle. (N.T. 154). When the defendant went into the bank, Lilley exited his vehicle and placed a bag over the license plate to conceal the plate. (N.T. 154).
Defendant was in the bank for approximately two minutes. (N.T. 155). After defendant re-entered his car Lilley drove as fast as he could to get back to Hunter's Ridge. When he pulled into the Hunter's Ridge complex, defendant told him to stop, gave him $20.00, and got out of the vehicle. (N.T. 157, 158).
Lilley positively identified the defendant as the person known to him as "New York" who committed the robbery. (N.T. 140, 167).
Trial Court Opinion, 9/23/13, at unnumbered pages 2-6.
On appeal, Appellant raises two contentions:
1. Whether the evidence was legally and factually insufficient to prove that defendant committed the crime of robbery, theft by unlawful taking, simple assault, and recklessly endangering another person.
2. Whether the court erred in failing to grant the defendant's motion for judgment of acquittal at the conclusion of the Commonwealth's case, when the Commonwealth failed to sustain its burden of proving its case on each charge beyond a reasonable doubt.
Appellant's brief at 3.
Initially, we recite our standard of review when we examine the sufficiency of the evidence.
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record "in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). "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." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005). Nevertheless, "the Commonwealth need not establish guilt to a mathematical certainty." Id..... Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001).
. . . . [W]e may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. See Brewer, 876 A.2d at 1032.
Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa.Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa.Super. 2013)).
In the present case, the foundation for Appellant's position relates to the fact that the witnesses who correctly described Appellant's race were unable to identify him due to the fact that Appellant's face was partially obscured by the bandana over his lower face and the hoodie pulled over his forehead. It was Lilley who cemented that Appellant perpetrated the bank robbery when Lilley testified that he transported Appellant to the bank for the purpose of robbing it, that he saw Appellant place a bandana over his face and pull a hoodie down over his head, that Appellant had a gun in his waistband, and that he drove Appellant from the scene immediately after the robbery was committed. Appellant maintains that there was insufficient evidence to establish that he was the perpetrator of the armed robbery of the bank because Lilley was not worthy of belief for various reasons.Appellant's brief at 9-10. Appellant acknowledges that "the testimony of the co-defendant, Robert P. Lilley, Jr., linked the Appellant to the robbery of the Parkvale Bank in Brownsville." Appellant's brief at 9. Appellant claims that Lilley cannot be credited in that: 1) before fingering Appellant, Lilley gave inconsistent accounts of the events of the day in question to police; 2) Lilley received a favorable plea arrangement when he implicated Appellant in the crime to avoid a lengthy prison term; and 3) Lilley was previously convicted of crimes involving crime falsi.
Thus, in point of fact, Appellant's challenge, which pertains to the jury's decision to credit Lilley's testimony, is properly characterized as one relating to the weight of the evidence. Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.Super. 2007) (defendant's position that victim's version of events was not worthy of belief related to "weight, not sufficiency, of the evidence"). However, Appellant's position fails since it was solely within the province of the jury to determine Lilley's credibility at trial. 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) ("The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. . . . It is not for this Court to overturn the credibility determinations of the fact-finder.").
Appellant next posits that his motion for judgment of acquittal made after the close of the Commonwealth's proof should have been granted. "A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge." Commonwealth v. Foster, 33 A.3d 632, 635 (Pa.Super. 2011) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805–06 (Pa.Super. 2008)). In this respect, Appellant's argument is merely an iteration of the one that he made in connection with his challenge to the sufficiency of the evidence. Appellant's brief at 12. We therefore reject it for the same reason as outlined above.
Judgment of sentence affirmed.