Com. v. Cunningham

• Decision Date: 31 July 2002
• Citation: 805 A.2d 566,2002 PA Super 249
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James CUNNINGHAM, Appellant.
• Court: Pennsylvania Superior Court

805 A.2d 566

2002 PA Super 249

COMMONWEALTH of Pennsylvania, Appellee, v. James CUNNINGHAM, Appellant.

Superior Court of Pennsylvania.

Argued June 25, 2002.

Filed July 31, 2002.

Alston B. Meade, Philadelphia, for appellant.

Eva Robertson, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before LALLY-GREEN, OLSZEWSKI, and POPOVICH, JJ.

LALLY-GREEN, J.

¶ 1 Appellant, James Cunningham, appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia following his convictions for two counts of robbery, and one count each of burglary and criminal conspiracy. We affirm.

¶ 2 The trial court found the following facts of this case:

On December 30, 1999, at 9:15 AM, Lawrence Ravenell, a retired Philadelphia police officer, and his brother, Charles, were leaving their home at 5920 Oxford Street to purchase a refrigerator when a car bumped the rear of their vehicle and someone shouted "Police." N.T. 12/19/00, pp. 74-77, 90. Mr. Ravenell identified [Appellant's] co-defendant, Holloday, as the man who approached his widow, placed a gun to the side of his head and asked "where is the numbers money?" N.T. 12/19/00, pp. 77-78. Mr. Ravenell replied he had no numbers money. Holloday reached into the car, took the keys out of the ignition and said to a masked man, either [Appellant] or co-defendant Kennedy, who was at the other window "let's take them in the house." N.T. 12/19/00, p. 78. Once inside, Holloday went upstairs and the other man, either [Appellant] or Kennedy, took an extension cord and tied up the brothers in the basement. N.T. 12/19/00, p. 79. This man, again, either [Appellant] or Kennedy, reached into Mr. Ravenell's pocket and removed $1272 from his wallet and took the .380 Beretta which Lawrence Ravenell normally carried. N.T. 12/19/00, p. 80. Lawrence testified that he had $1272 in his wallet to purchase the refrigerator. Mr. Ravenell worked for a bar owner for whom he picked up the bar receipts and cash and delivered them to the owner. A bag containing the receipts and cash amounting to approximately $800 was in the car and was also taken. N.T. 12/19/00, pp. 84-85. Lawrence Ravenell testified he thought the men would kill him because he knew they would not find additional money in the home. N.T. 12/19/00, p. 91.

After the brothers were tied up, a third male, either [Appellant] or Kennedy, who was also masked, entered the basement and immediately went upstairs. N.T. 12/19/00, p. 83. Within a few minutes the police arrived and the man who tied up the Ravenell brothers ran upstairs. N.T. 12/19/00, p. 84.

Charles Ravenell also testified at trial. His testimony matched his brother's except that he did not see c-defendant Holloday's face. He also added that one of the masked men, either [Appellant] or Kennedy, threatened to kill him if he did not tell him where the money was. N.T. 12/19/00, pp. 122-128.

Sergeant Mark Stoots of the Philadelphia Police Department was the first officer to arrive, responding to a radio call of a home invasion in the area of 5900 Nassau Street. N.T. 12/19/00, p. 136. When Sergeant Stoots arrived, roofers who were working on a nearby property yelled to him that three black males had just taken tow black males into the rear of the house and they had guns. N.T. 12/19/00, p. 138. When Sergeant Stoots arrived at the back door to the Ravenell house, someone opened the door to which he yelled, "Police officer." N.T. 12/19/00, p. 139. The door was immediately slammed on him. N.T. 12/19/00, p. 139. After about 30 seconds Lawrence Ravenell opened the door and yelled that the men were all upstairs. N.T. 12/19/00, p. 139. When Sergeant Stoots went through the basement and upstairs, he observed Holloday running down the steps toward him. N.T. 12/19/00, p. 140. When the Sergeant said "Police Officer—Freeze" Holloday stumbled, then ran back up the stairs. N.T. 12/19/00, p. 140. Sergeant Stoots could hear several men upstairs and yelled to them to come down, that Police were on the scene. They replied "why don't you come up after us?" N.T. 12/19/00, p. 142. Sergeant Stoots notified the SWAT team when someone in the rear yelled that the men were escaping by the back window. N.T. 12/19/00, p. 143.

Ultimately, each of the defendant, [Appellant], Kennedy and Holloday were apprehended shortly after police arrived: Kennedy was caught inside the Ravenell's house—he surrendered when he was told the SWAT unit was coming in after him; [Appellant] was stopped several houses away after dangling from a porch and dropping into the driveway, he was stopped by officers, and Holloday was caught by Officer Benjamin Franklin who was responding to the radio call about the incident. N.T. 12/19/00, pp. 143-144, 146, 193-197.

Officer Stephanie Rutter testified she heard a radio call for a home invasion/robbery at the location. N.T. 12/19/00, 174. Because the Sergeant said on the radio that he was on the rear of the property, she took a position in the front, with her partner. She heard on the radio that several officers were chasing one of the perpetrators down the back alley. She and her partner went to the alley and saw [Appellant] hop over a fence with the sergeant and other officers behind him yelling "grab him." N.T. 12/19/00, 177. She and her partner grabbed [Appellant] and arrested him. N.T. 12/19/00, 177. They recovered two sets of car keys and $240.

Sergeant Shoots [sic] testified that when he heard witnesses screaming that the men were coming out of the back window, he ran down through the basement, out of the back door and observed [Appellant], dressed in red, white and blue sweats, dangling from the back porch and finally dropping into the driveway and continuing to flee. N.T. 12/19/00, 143. Sergeant Shoots followed him and saw him climb one fence, then another. The officers who were coming from the other direction apprehended him with Sergeant Stoots close behind. After his arrest, Sergeant Stoots confirmed that [Appellant] indeed was the same man he [ ] chased down the driveway. N.T. 12/19/00, 178.

All three defendants were tried together [before a jury] and convicted of Burglary, Criminal Conspiracy, and two counts of Robbery.

Trial Court Opinion, November, 2001, at 2-5.

¶ 3 On May 3, 2001, the trial court sentenced Appellant to a ten (10) to twenty (20) year consecutive term of imprisonment on each of the convictions. Appellant's aggregate sentence is forty (40) to eighty (80) years' imprisonment. Appellant filed post-sentence motions which were argued and denied. This appeal followed.

¶ 4 Appellant raises the following issues for our review:

I. Whether the Commonwealth's evidence was insufficient to prove beyond a reasonable doubt that Appellant was guilty of robbery, burglary, and criminal conspiracy where there was no direct evidence implicating Appellant and where police testimony regarding the alleged seizure of a key to an automobile involved in a robbery was specious?

II. Whether Appellant was denied his Sixth Amendment right to confront witnesses where the Commonwealth presented hearsay evidence in the form of a 911 transcript and the witness speaking on the transcript was not unavailable and could have been called to testify?

III. Whether the trial court abused its discretion by imposing an unduly harsh and excessive sentence where the sentence exceeded sentencing guidelines and the trial court did not consider Appellant's evident amenability to rehabilitation?

Appellant's Brief at vi.

¶ 5 Appellant first argues that there was insufficient evidence to support his convictions. Appellant contends that the evidence that he participated in the robberies and burglary was merely circumstantial.

"The standard we apply in reviewing the sufficiency of 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 factfinder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Heberling, 451 Pa.Super. 119, 678 A.2d 794, 795 (Pa.Super.1996) (citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). 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. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (Pa.Super.1995) (citations omitted). 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 trier 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. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted).

Commonwealth v. Vetrini, 734 A.2d 404, 406-407 (Pa.Super.1999).

¶ 6 Appellant does not argue that the Commonwealth failed to prove any of the elements of the crimes of robbery, burglary or criminal conspiracy. Rather, Appellant contends that the victims did not identify him as a perpetrator of the crimes and, therefore, that no evidence linked Appellant to the crimes.

¶ 7 The trial court offered the following analysis of this issue:

There was sufficient evidence to convict Appellant of these crimes. While much of the evidence is circumstantial, circumstantial evidence is sufficient evidence. The police arrived while the crime was in progress. Sergeant Stoots' identification of [Appellant] was clear and undeniable; he saw [Appellant]

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