February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
DION BENSON, Appellant
Appeal from the Judgment of Sentence entered October 4, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0013032-2009; CP-51-CR-0013011-2009; and CP-51-CR-0013401-2009.
BEFORE: ALLEN, STABILE, and STRASSBURGER, [*]JJ.
Dion Benson ("Appellant") appeals from the judgment of sentence imposed after the trial court convicted him of aggravated assault, conspiracy to commit aggravated assault, carrying a firearm without a license, simple assault and intimidation of a witness. We affirm.
The trial court detailed the testimony presented at trial as follows:
On December 24, 2008, between 11 a.m. and 1 p.m., Darice Gardner exited a lottery store located on Ruscomb and Rosehill streets in Philadelphia. Notes of Testimony, August 20, 2012 pp. 22, 26. Gardner was standing on the corner of Rosehill Street in front of the lottery store waiting for a ride. Id. at 25-26. While Gardner was waiting, Appellant and Angel Valdes drove up to the corner and initiated dialogue with him from a silver car. Id. at 26, 28-31. Rather than converse with them, Gardner walked across the street away from Appellant and Valdes. Id. at 28-29. Appellant and Valdes again pulled the car up to the sidewalk next to where Gardner was standing. At that point, Appellant, in the passenger seat, was closest to Gardner, and he asked Gardner why was he standing out there and whether he was "hustling." Id. at 31, 34. Appellant and Gardner then began to argue. Id. at 31-33. After arguing for 20 minutes, Appellant and Valdes jumped out of the car and walked toward Gardner. Id. at 35.
Valdes subsequently grabbed Gardner's forearms with a tight grip and struck him in the face two times. Id. at 36-40. Appellant watched from three feet away. Id. 38-39. Once Gardner freed himself, he punched Valdes. Id. at 40. When doing so, Gardner felt a strike to the left side of his head and blacked out. Id. at 41-44. Although Gardner did not see who punched him, he knew it was not Mr. Valdes. Moreover, Appellant was the only other person in the immediate vicinity. Id. at 43.
When Gardner regained consciousness he went home and told his wife (Angela White) that he had been "jumped." Id. at 176. Two minutes later, Gardner left the house to look for Appellant and Valdes. Id. at 177. Five minutes later Angela White left the house. Notes of Testimony, August 21, 2012, p.14. While looking for Appellant and Valdes, Gardner grabbed a metal pipe from an alley to defend himself. Notes of Testimony, August 20, 2012, pg. 47-48. Ms. White later saw Gardner chase Appellant with the pipe. Id. at 177. As he was being pursued, Appellant ordered Valdes to drive the car and shoot Gardner. Id. at 52, 179. Gardner asked Valdes not to get involved since there was no disagreement between the two of them. Id. at 52. Notwithstanding, Valdes complied with Appellant's orders by driving the car, rolling down his window, and firing shots at Gardner from the car approximately ten to fifteen feet away. Id. at 55-57. None of the shots hit Gardner. Id. After the shots were fired, Gardner stopped chasing Appellant, and eventually both he and his wife went home. Id. at 57-58.
On December 25, 2008, Ms. White went to the same lottery store with her child to buy milk. After she left the store, Valdes called her over to his car. However, White did not go to the car. Instead, White went home and informed her husband. Id. at 63, 189-191. Gardner later went to the lottery store with a friend ("L"). Id. at 64. After leaving the store fifteen minutes later, Gardner saw Appellant with a gun. Id. at 69, 75. At the time, Gardner was a few feet from Appellant. Id. at 74-75. Gardner described the gun as "like a .40 caliber" or "a .45 or something." Id. at 75.
While Gardner and "L" were standing outside the store, Appellant told "L" to "move". Id. at 75-76. At that point, Appellant was standing three feet from Gardner, and Valdes was behind a little red truck. Id. at 78. Gardner felt as though he was being trapped. Id. Suddenly, Appellant fired two shots. Id. at 77-80. After the second shot, Gardner fled down Rosehill Street. As Gardner was running, Appellant fired a third shot. Id. at 78-80. All three shots missed Gardner. In the meantime, Valdes jumped into a silver car as Appellant chased Gardner for two blocks. Id. at 82. Gardner escaped his pursuers by running and dipping between cars. Id. at 83. He eventually climbed through the window of his sister-in-law's (Sandy's) house. Id. at 84-85.
On December 26, 2008, Gardner and White flagged down Officer Joseph O'Neill. Id. at 198, Notes of Testimony, August 21, 2012, pg. 43. Gardner explained that Appellant and Angel Valdes had shot at him on December 24th and 25th. Notes of Testimony, August 21, 2012, pg. 46. Officer O'Neill took Gardner and White to the police station where they gave a statement explaining what had happened. Id. at 46. Gardner also gave a description of Appellant and Valdes, and the two cars they had driven on December 24th and 25th. Id. at 46-48. Lastly, Gardner and White gave the address where Appellant and Valdes were living. Id. at 48. Later that day, the police arrested Mr. Valdes. Id. at 59-66. Notes of Testimony, August 20, 2012, pg. 92.
On January 5, 2009, Gardner testified at Valdes' preliminary hearing. Notes of Testimony, August 20, 2012, pg. 93, 206. At the conclusion of the hearing, the court scheduled Valdes' next hearing in March. Before the March hearing, Appellant drove up and down the street in front of Gardner and White's house. Notes of Testimony, August 20, 2012, pg. 96. Appellant later walked up to the front steps of Gardner and White's house and told them that he could have killed both of them because he had been watching them. Id. at 94-95, 200. Appellant also told them that he would pay them not to go to court. Id. at 94. Appellant further told them "Make sure you all don't go to court tomorrow." Id. at 200. In response, Gardner and White called Assistant District Attorney Lynne O'Brien and left a voicemail message for Detective Brooks informing them about the threats. Id. at 201; Notes of Testimony, August 21, 2012, pg. 28. On February 24, 2009, the police tried to locate Appellant without success.
On March 21, 2009, Appellant made further contact with the Complainant and White. On this day, Appellant saw Gardner and White at a Sunoco gas station. On this occasion, Appellant made Gardner and White two offers. Appellant first offered Gardner and White five thousand dollars not to [sic] go to court for Valdes' case. He then offered them five thousand dollars not to [sic] come to court for his own case. Id. at 97-98. Although the police subsequently tried to locate Appellant, they learned that he had fled the court's jurisdiction. However, federal fugitive authorities ultimately found Appellant in New Jersey and extradited him to Philadelphia on July 29, 2009.
On August 20, 2012, Appellant waived his right to a jury trial, and this court heard his case. During Appellant's case-in-chief, Appellant's girlfriend (Robin Stith) claimed that Appellant had been with her from 11 p.m. December 24, 2009, through the afternoon of December 25, 2009. Notes of Testimony, August 21, 2012, pg. 84-86. Stith further testified that she and Appellant were together the entire time, playing with her children and partaking in Christmas festivities. Id. Stith denied knowing Valdes, claimed she did not know that Appellant had been a fugitive in 2009, and stated that Appellant is left-handed. Id. at 86, 94, 100-102. Moreover, Stith testified she was with Appellant every day in July 2009 even though Appellant stipulated at trial that the Federal Fugitive Authority took him in custody in Atlantic County New Jersey on July 29, 2009. Notes of Testimony, August 21, 2012, pg. 78 and 101.
Trial Court Opinion, 6/28/13, at 4-8 (bold in original, footnotes omitted).
Appellant filed a post-sentence motion on October 10, 2012, which the trial court denied on November 19, 2012. Appellant filed a timely notice of appeal and presents the following issues for review:
I. Is [Appellant] entitled to an arrest of judgment on all charges where the evidence is insufficient to sustain the verdict?
II. Is [Appellant] entitled to a new trial on all charges where the verdict is not supported by the greater weight of the evidence?
Appellant's Brief at 3.
We initially note our standard of review in claims regarding the sufficiency and weight of the evidence. When examining a challenge to the sufficiency of the evidence, our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the evidence 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 [finder] 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. Jones, 874 A.2d 108, 120 (Pa.Super. 2005).
In addressing a weight of the evidence claim, we employ the following standard of review:
Our scope of review for such a claim is very narrow. The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Young, 692 A.2d 1112, 1114 (Pa.Super. 1997) (citations omitted).
In conjunction with the foregoing standards of review, we have reviewed the certified record and found no merit to Appellant's claims of error.
Appellant first argues that "the Commonwealth did not prove beyond a reasonable doubt that [Appellant] committed any crime. Rather, the Commonwealth only established that [Appellant] was trying to protect himself from a vicious onslaught of a victim who was wielding a metal pipe." Appellant's Brief at 6. Appellant contends:
Here, there is insufficient evidence to sustain any of the charges. From the record, [Appellant] and another individual had a verbal argument with the victim. However, it was the victim who picked up a pipe and from the record clearly chased [Appellant] and attempted to assault him. Only after this went on for some time does the record reflect that [Appellant] shouted something out and then the individual with [Appellant] open[ed] fire.
All that the Commonwealth established was that the victim introduced the serious if not a deadly weapon into the fray and that [Appellant] and the other individuals sought to protect themselves.
Appellant's Brief at 7.
The foregoing assertions show Appellant's impermissible attempt to relitigate with this Court the evidence produced at trial. It is axiomatic that we "are not permitted to substitute our judgment for the factfinder's." See Commonwealth v. House, 537 A.2d 361, 364 (Pa.Super. 1988). In addressing Appellant's sufficiency claim, the trial court analyzed the statutory elements of aggravated assault, criminal conspiracy, firearms not to be carried without a license, and intimidation of a witness, and concluded from the testimony presented at trial that credible and sufficient evidence was presented to sustain Appellant's convictions. See Trial Court Opinion, 6/28/13, 12-15. Upon review, we agree with the trial court's analysis, and adopt and incorporate it as our own.
With regard to Appellant's weight claim, Appellant again attempts to relitigate the evidence by positing that "the greater weight of the evidence clearly establishes that it was the victim who greatly elevated the risk of violence or violence itself in this case but [sic] grabbing a piece of pipe and chasing [Appellant]. … the credibility of the victim was terrible…" Appellant's Brief at 9-10. Appellant continues, "any verdict in this matter, given the total lack of credibility of the testifying victim had to be based on speculation, conjecture and surmise…" Id. at 11. This claim is baseless.
Again, the weight to be accorded conflicting evidence is exclusively for the factfinder, whose findings will not be disturbed on appeal if they are supported by the record. Young, supra. The trial court explained:
In our case, the verdict was not against the weight of the evidence. On the contrary, the Commonwealth presented overwhelming evidence that the Appellant was guilty. The verdicts did not shock one's sense of justice. The witness testimony was corroborated by police reports, exhibits, and other testimony. The record established that on December 24, 2008, Appellant assaulted Gardner, and then ordered Valdes to shoot him. The following day the Appellant himself shot at Gardner. Moreover, the record supports the intimidation charges since the Appellant attempted to prevent Gardner and White from testifying.
Trial Court Opinion, 6/28/13, at 16.
Given the foregoing, Appellant's weight claim fails.
Judgment of sentence affirmed.