Com. v. Horton

• Decision Date: 16 June 1994
• Citation: 434 Pa.Super. 478,644 A.2d 181
• Parties: COMMONWEALTH of Pennsylvania v. Jermaine HORTON, a/k/a Edward Jermaine Horton, Appellant.
• Court: Pennsylvania Superior Court

Page 181

644 A.2d 181

434 Pa.Super. 478

COMMONWEALTH of Pennsylvania v. Jermaine HORTON, a/k/a Edward Jermaine Horton, Appellant.

Superior Court of Pennsylvania.

Argued March 16, 1994.

Filed June 16, 1994.

Joseph D. Silvaggio, Pittsburgh, for appellant.

Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

Before WIEAND, DEL SOLE and HUDOCK, JJ.

WIEAND, Judge:

Jermaine Horton was tried by jury and was found guilty of robbery, but not guilty of criminal conspiracy. Post-trial motions were denied, and Horton was sentenced to serve a term of imprisonment for not less than five (5) years nor more than fifteen (15) years. On direct appeal from the judgment of sentence, Horton argues that his conviction for robbery was contrary to the weight of the evidence. He contends also that his trial counsel was ineffective (1) for failing to develop adequately the defense of duress; and (2) for failing to request a jury instruction which defined recklessness.

The evidence at appellant's trial was that on the evening of April 25, 1992, Gregory Holder had driven into the Broadhead Manor section of Pittsburgh to purchase crack cocaine. A group of four men, which included Jermaine Horton (the appellant), Rufus Carter and Gladius Lawrence, approached Holder's car. ¹ According to Emma Campbell, an eyewitness, Gladius Lawrence handed a gun to Rufus Carter following a brief conversation among the four men and Holder. Then the entire group, except for Carter, backed away from Holder's car. Carter, while brandishing the gun, said to Holder, "give me the money." When Holder responded by attempting to back up his vehicle and drive away, Carter fired several shots at Holder, striking him in the head and chest and causing his death. According to Emma Campbell, Carter then pointed the gun in the direction of his companions and directed: "Get the money or I'll shoot." Upon hearing Carter issue this command, Horton, the appellant, approached Holder's car and searched Holder's shirt pocket. He found no money, however, and so informed Carter. The four men then fled from the scene. Appellant, however, later returned to the scene of the crime, where he was confronted by police. Upon being transported to police headquarters and being informed of his constitutional rights, appellant gave a statement in which he admitted being present when Carter shot the victim. He also told police that he had searched the victim's pocket for money at Carter's direction following the shooting. Appellant did not then say to police that he had been threatened by Carter. At trial, however, appellant testified that he had searched the victim's pocket for money because he was afraid he would be shot if he did not do as Carter had instructed. ²

In reviewing appellant's challenge to the weight of the evidence, we apply the following principles:

"A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence." Commonwealth v. Taylor, supra 324 Pa.Super. at 425, 471 A.2d [1228] at 1230 [ (1984) ]. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). "A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and [make] the award of a new trial [ ] imperative so that right may be given another opportunity to prevail." Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). "The role of an appellate court in reviewing the weight of the evidence is very limited." Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993). "The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court's judgment for that of the trial court." Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). Accordingly, "[w]here the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court's denial of a motion for new trial will not be disturbed." Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

Commonwealth v. Manchas, 430 Pa.Super. 63, 71, 633 A.2d 618, 622-623 (1993).

In the instant case, appellant was charged with robbery in violation of 18 Pa.C.S. § 3701(a)(1)(i) and (ii), which provide as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another; [or]

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury....

At trial, the Commonwealth posited that appellant had been guilty because he had been part of a conspiracy to rob the victim, or, at least, that he had acted as an accomplice by searching the victim's pockets for money at the direction of Carter. Appellant argues on appeal that, by acquitting him of the conspiracy charge, the jury found that he was not acting in concert with the others and did not possess a shared criminal intent with Rufus Carter and others to rob the victim. Therefore, appellant's argument continues, the jury disregarded the weight of the evidence by finding that he was guilty of robbery under an accomplice liability theory. There was no evidence, he argues, that he inflicted serious bodily injury upon the victim or threatened the victim with such injury, and the Commonwealth's own eyewitness indicated that he had been acting under duress when he searched the victim's pocket for money after being threatened at gunpoint by Rufus Carter. Under these circumstances, appellant urges, his conviction should be set aside as being contrary to the weight of the evidence.

It is well settled that "the law does not require consistency in criminal verdicts so long as the evidence is sufficient to support the guilty verdict rendered." Commonwealth v. Troy, 381 Pa.Super. 326, 333, 553 A.2d 992, 996 (1989), allocatur denied, 525 Pa. 626, 578 A.2d 413 (1990). See also: Commonwealth v. Trill, 374 Pa.Super. 549, 560, 543 A.2d 1106, 1111 (1988), allocatur denied, 522 Pa. 603, 562 A.2d 826 (1989); Commonwealth v. Maute, 336 Pa.Super. 394, 407, 485 A.2d 1138, 1145 (1984). In this regard, the Superior Court has observed:

'The fault with appellant's argument is that "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971), quoting Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959). When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, "the court looks upon [the] acquittal as no more than the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Id. Accord: Commonwealth v. Strand, 464 Pa. 544, 547, 347 A.2d 675, 676 (1975). Thus, consistency in a jury's verdicts in a criminal case is unnecessary, provided there is sufficient evidence to support the convictions the jury has returned, Commonwealth v. Stegmaier, 247 Pa.Super. 159, 371 A.2d 1376 (1977); Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975); Commonwealth v. Jackson, 230 Pa.Super. 386, 326 A.2d 623 (1974), and inconsistency in verdicts affords an accused no cause for relief, even though it may be difficult to reconcile the verdicts, Commonwealth v. Kwatkoski, 267 Pa.Super. 401, 406 A.2d 1102 (1979).'

Commonwealth v. Purcell, 403 Pa.Super. 342, 349-350, 589 A.2d 217, 221 (1991), allocatur denied, 529 Pa. 657, 604 A.2d 248 (1992), quoting Commonwealth v. Shaffer, 279 Pa.Super. 18, 21-22, 420 A.2d 722, 724 (1980). See also: Commonwealth v. Boyles, 407 Pa.Super. 343, 349-350, 595 A.2d 1180, 1183-1184 (1991), allocatur denied, 531 Pa. 651, 613 A.2d 556 (1992); Commonwealth v. Anderson, 379 Pa.Super. 589, 592-594, 550 A.2d 807, 809 (1988) (en banc).

The evidence introduced at trial was legally sufficient to support appellant's conviction for robbery. Appellant was part of a group of four men which approached the victim's car. After a brief conversation, one member of this group, Rufus Carter, demanded money from the victim at gunpoint. When the victim did not comply with Carter's directive, he was shot by Carter. Following the shooting, appellant, at Carter's direction, searched through the victim's pocket for money. From these facts, the jury could infer that appellant had been acting as Carter's accomplice in the robbery of Gregory Holder.

That the jury rejected appellant's defense of duress was not shocking to the trial court's sense of justice, and our review of the record discloses no basis for determining that the trial court committed an abuse of discretion in this regard. The defense of duress is defined by statute as follows:

(a) General rule.--It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(b) Exception.--The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress....

18 Pa.C.S. § 309. "The three elements which must be shown to establish a duress defense are: (1) an immediate or imminent threat of death or serious bodily injury; (2) a well grounded or reasonable fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm...