Com. v. Chiari

• Decision Date: 15 November 1999
• Citation: 741 A.2d 770
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Jose Augenstein CHIARI, Appellee.
• Court: Pennsylvania Superior Court

741 A.2d 770

COMMONWEALTH of Pennsylvania, Appellant, v. Jose Augenstein CHIARI, Appellee.

Superior Court of Pennsylvania.

Submitted July 26, 1999.

Filed November 15, 1999.

D. Peter Johnson, Dist. Atty., Lewisburg, for Com., appellant.

Hugh A. Benson, Jr., Selinsgrove, for appellee.

Before HUDOCK, J., FORD ELLIOTT, J., and CERCONE, President Judge Emeritus. CERCONE, President Judge Emeritus:

¶ 1 This is an appeal by the Commonwealth from an order docketed November 20, 1998 which finalized the judgment of sentence entered after a jury convicted Appellee, Jose Augenstein Chiari, of two counts of robbery and associated crimes. See Commonwealth v. Chamberlain, 442 Pa.Super. 12, 658 A.2d 395, 397 (1995), appeal quashed, 543 Pa. 6, 669 A.2d 877 (1995) (a judgment of sentence becomes final for purposes of appeal when the Trial Court disposes of post-sentencing motions). For the reasons that follow we reinstate the jury's verdict and vacate the judgment of sentence.

¶ 2 The record indicates that on the morning of April 29, 1997, Appellee and his associate Dwight Smith, went to the home of Appellee's estranged wife, C.J. Chiari. On the date in question, Appellee's sister, Wendy Chiari, and her friend Willy Jackson were staying with Mrs. Chiari. Appellee and Dwight Smith forced their way into Mrs. Chiari's home and, at gunpoint, demanded money and drugs as well as Wendy Chiari's car keys and her beeper. During the incident, Willy Jackson was robbed of his jewelry. See Trial Court Opinion filed 11/20/98 at 2.

¶ 3 A jury convicted Appellee of two counts of robbery, three counts each of simple assault, and recklessly endangering another person, and one count each of firearms not to be carried without a license and receiving stolen property. 18 Pa. C.S.A. §§ 3701, 2701, 2705, 6106 and 3925, respectively. Several days after the jury returned its verdict, the Commonwealth filed written notice that it intended to seek imposition of the mandatory minimum sentencing provisions applicable to crimes of violence committed with a firearm. On April 28, 1998, the Trial Court sentenced Appellee to serve four (4) to twenty (20) years of imprisonment for the robbery of Willy Jackson, with a concurrent term of eighteen (18) months to twenty (20) years for the robbery of Wendy Chiari. The Trial Court imposed an aggregate concurrent term of six (6) months to one (1) year on the remaining charges. Appellee filed several timely post-sentence motions. However, the Commonwealth filed a notice of appeal to the Superior Court challenging the Trial Court's refusal to apply the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712. This Court quashed the Commonwealth's appeal as interlocutory on the grounds that it precluded the Trial Court from considering Appellee's post-sentence motions. See Commonwealth v. Chiari, Appeal No. 739 Harrisburg 1998 (Order dated July 13, 1998).

¶ 4 Upon remand, the Trial Court heard oral argument on Appellee's claims, including his request for a judgment of acquittal on the charge of robbing Willy Jackson. At this hearing, the Commonwealth orally objected to the Trial Court's refusal to apply the mandatory minimum sentencing provisions applicable to a robbery committed with a firearm. See N.T. Post Trial Motions Hearing, 9/30/98, at 13. On the date of the hearing, the Trial Court entered an Amended Sentencing Order correcting certain scrivener's errors in the original order of sentence. Subsequently, on November 19, 1998, the Trial Court ruled on Appellee's motion for acquittal, holding that, as a matter of law, the evidence was insufficient to sustain Appellee's conviction for the robbery of Willy Jackson. On that same date, the Trial court vacated the judgment of sentence imposed for the challenged robbery count, and reaffirmed the sentence imposed on the other counts without making any alterations to the sentencing scheme. See Order and Trial Court Opinion docketed November 20, 1998.

¶ 5 Thereafter, on December 17, 1998, the Trial Court conducted a hearing to consider the Commonwealth's claim that the sentence on the remaining robbery count was lower than, and thus outside of, the Sentencing Guidelines. At the hearing, the Commonwealth argued that the Trial Court had imposed sentence outside the Guideline ranges without giving any reasons of record for this departure. See N.T. Post-Sentence Hearing, 12/17/98. Citing double jeopardy concerns, the Trial Judge declined to alter the sentence. Id. at 15. The next day, December 18, 1998, the Commonwealth filed a timely notice of appeal from the sentencing order of November 20, 1998. The Commonwealth presents two claims for our consideration:

1. Did the lower Court abuse its discretion when it acquitted the defendant of robbery where the jury found the defendant guilty thereof as the accomplice of a co-felon who committed robbery of one of their three victims because the defendant was not present when the co-felon committed said act?

2. Did the lower Court improperly fail to apply the mandatory sentencing requirements of 42 Pa.C.S. § 9712 where the Commonwealth proved beyond a reasonable doubt that the unarmed defendant was the accomplice of a co-felon who, to the clear knowledge of the defendant, visibly possessed and used a handgun to rob two separate victims?

Commonwealth's Brief at 3.

¶ 6 As an initial matter, we note that the Commonwealth's first issue is properly before us. Our law holds that the government may appeal from a trial court's order finding the evidence insufficient to sustain a jury's verdict of guilty and entering a judgment of acquittal in favor of a defendant. Commonwealth v. Feathers, 442 Pa.Super. 490, 660 A.2d 90, 94 (1995) (en banc),aff'd,546 Pa. 139, 683 A.2d 289 (1996). An order by a reviewing court reversing a judgment of acquittal and reinstating a jury verdict does not offend the proscription against double jeopardy because such a procedure does not require a second trial. Id. Thus, we may proceed to analyze the propriety of the Trial Court's order granting Appellee an acquittal on the charge that he robbed Willy Jackson.

¶ 7 When ruling upon a post-verdict motion for judgment of acquittal, "a trial court is limited to determining the presence or absence of that quantum of evidence necessary to establish the elements of the crime." Id., 660 A.2d at 94-95.

To determine the legal sufficiency of evidence supporting a jury's verdict of guilty, the Superior Court must:

view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the jury unless the evidence be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.

Id. at 95 (quotations and citations omitted). Accord Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995).

¶ 8 The Commonwealth proceeded on a theory of accomplice liability with regard to the charge that Appellee robbed Willy Jackson.

It is well established that an accomplice is equally criminally liable for the acts of another if he acts with the intent of promoting or facilitating the commission of an offense and agrees, aids, or attempts to aid such other person in either planning or committing that offense.

Commonwealth v. Spotz, 552 Pa. 499, 511, 716 A.2d 580, 585 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999). The shared criminal intent necessary to sustain a conviction predicated on accomplice liability may be inferred from a defendant's words and conduct, as well as from the attendant circumstances. Id. at 511, 716 A.2d at 586.

¶ 9 Testimony adduced at trial indicates that late on the evening of April 28, 1997, Appellee and his cohort Dwight Smith discussed their mutual desire to harm Appellee's sister Wendy and her paramour Willy Jackson. See N.T. Trial, 3/10/98, at 65-75 (testimony of Susan Rivera). In the early morning hours of April 29th, Appellee and Smith armed themselves with a stolen 9 mm handgun and drove to Mrs. Chiari's home, where Wendy was staying. Id. at 99-103 (testimony of Charles W. Hulsizer) and 105-115 (testimony of Raymond C. Michaud, Jr.). When they reached Mrs. Chiari's home, Appellee forced his way in the door and Smith followed. Id. at 25 (testimony of C.J. Chiari). Dwight Smith wore a sheer black nylon stocking over his face and immediately began demanding "where's the shit?," which Mrs. Chiari understood to mean that Smith wanted drugs and money. Id. at 29, 43, 209. Shortly thereafter, Smith pulled a gun out of a pouch in his sweatshirt. Id. at 31, 53. Appellee and Smith demanded Wendy's beeper and her car keys. Id. Both men kept saying "Where's the shit?" Id. Mrs. Chiari testified unequivocally that Appellee was present in her living-room while Smith brandished his weapon and demanded that Willy Jackson hand over his jewelry. Id. at 36, 53-54. After Smith took the jewelry from Mr. Jackson, Appellee forced Mrs. Chiari upstairs to retrieve Wendy's beeper and car keys. Id. at 32, 36.

¶ 10 Appellee's sister Wendy also testified at his trial. However, she was unable to recall any of the events that led to her brother's arrest. Consequently, Wendy's testimony from Appellee's preliminary hearing was read into the record. See N.T. Trial, 3/10/98, at 185-211. The testimony thus adduced corroborates that of the other witnesses...