Com. v. Spencer

• Decision Date: 30 March 1994
• Citation: 432 Pa.Super. 631,639 A.2d 820
• Parties: COMMONWEALTH of Pennsylvania, v. Troy Scott SPENCER, Appellant.
• Court: Pennsylvania Superior Court

Page 820

639 A.2d 820

432 Pa.Super. 631

COMMONWEALTH of Pennsylvania, v. Troy Scott SPENCER, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 20, 1993.

Filed March 30, 1994.

Daniel K. Taylor, Lancaster, for appellant.

Craig W. Stedman, Asst. Dist. Atty., Lancaster, for Com., appellee.

Before WIEAND, HUDOCK and MONTGOMERY, JJ.

WIEAND, Judge:

Troy Scott Spencer was tried by jury and was found guilty of robbery and criminal conspiracy in connection with the knife-point holdup of a Turkey Hill Convenience Store in Lancaster during the early morning hours of January 17, 1992. Post-trial motions were denied, and Spencer was sentenced to pay fines and undergo concurrent sentences of imprisonment of not less than five (5) years nor more than twenty (20) years for robbery and not less than one (1) year nor more than ten (10) years for conspiracy. ¹ On direct appeal from the judgment of sentence, Spencer contends that the evidence was insufficient to connect him with the crimes committed. He also contends that the trial court erred in allowing a witness to testify that his gait was similar to that of the robber and that his counsel rendered ineffective assistance.

When reviewing an appeal based on the sufficiency of the evidence, "[w]e view the evidence in the light most favorable to the Commonwealth, which has won the verdict. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged was established beyond a reasonable doubt." Commonwealth v. Sattazahn, 428 Pa.Super. 413, 418, 631 A.2d 597, 600 (1993). See also: Commonwealth v. Chambers, 528 Pa. 558, 565, 599 A.2d 630, 633 (1991), cert. denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992); Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993). Although guilt cannot be found from mere surmise, conjecture or speculation, Commonwealth v. Scott, 409 Pa.Super. 313, 315, 597 A.2d 1220, 1221 (1991), circumstantial evidence may sustain a conviction if the totality of the evidence establishes guilt beyond a reasonable doubt. Commonwealth v. Chambers, supra, 528 Pa. at 568, 599 A.2d at 635. Issues of credibility and of the weight to be assigned to evidence are for the jury, which is free to believe all, part or none of the testimony. See: Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986). See also: Commonwealth v. Sattazahn, supra; Commonwealth v. Bailey, 322 Pa.Super. 249, 269-270, 469 A.2d 604, 615 (1983). It is not necessary that the evidence be totally incompatible with innocence as long as the evidence is not " 'so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), citing Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

"A person is guilty of robbery if, in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury...." 18 Pa.C.S. § 3701(a)(1)(ii). To be guilty of conspiracy, a person must have agreed with another to commit or participate in the commission of a crime. 18 Pa.C.S. § 903. Our review of the record confirms that the Commonwealth presented testimony and evidence which established each and every element of these offenses.

At or about 2:55 a.m. on January 17, 1992, a man entered the Turkey Hill Store brandishing a knife and wearing a black T-shirt over his head, with holes cut out for his eyes. He ordered Robert Fogel, who was working the night shift, to "give it up." As Fogel retrieved approximately one hundred ($100) dollars from the cash register and gave it to the robber, William Dennison, while standing behind a nearby counter, observed the robber's appearance. ² The robbery was also recorded on video tape by the store surveillance camera.

When the robber left the store, Dennison observed him enter an approaching vehicle. As the vehicle drove away, Dennison entered his car, followed the vehicle carrying the robber and obtained the number on the license plate. He saw the vehicle stop; whereupon, two men left on foot. Dennison then returned to the convenience store, where he found that the police had already arrived. He and Fogel described the robber as a white male, wearing a plain black leather jacket, dark trousers, sneakers and a black T-shirt over his head. They said he was about 5'5"' or 5'6"' tall and of medium build. He was not wearing glasses. Dennison said the robber's eyes were green.

With information supplied by Dennison, police were able to find the getaway car and arrest Mark Walton, who was found standing near the car. Walton was wearing dark clothes and a leather jacket, and Dennison identified him as the robber. Following his arrest, Walton implicated Spencer in the robbery. He and Spencer, Walton said, had been drinking at Spencer's house when they decided to commit a robbery. After splitting a submarine sandwich at the Rendezvous Steak House, ³ Walton and Spencer drove to Walton's house, where they obtained a butcher knife and a black T-shirt. They then went to the Turkey Hill Convenience Store, where, according to Walton, Spencer entered the store while Walton waited in the car. After Spencer committed the robbery, both men drove away. Their car ran out of gas after only a few blocks, however, and they abandoned it. Spencer, according to Walton, had been wearing dark clothing and a plain black leather jacket.

At trial, Dennison identified Spencer as the person who had committed the robbery. He noted that it was Spencer who had the green eyes, and he offered an explanation for the mistake which had led him initially to identify Walton. Also called as a Commonwealth witness was Cindy Wimer, ⁴ who had known appellant for approximately a year and who had observed the distinctive and easily recognized gait with which he walked. When appellant walked, she said, he had a "bounce in his step ... like rolling off a step." She was shown the video tape of the robbery, and said the robber walked like Spencer.

Appellant did not testify but offered an alibi defense and attempted to show that he had been at a party at his house with other people on the night of the robbery, where he had fallen asleep. Two defense witnesses had observed appellant at the party but were unable to be definite about his whereabouts at 2:55 a.m.

The total evidence was sufficient to permit a jury to find that appellant had entered the Turkey Hill Store and had committed the robbery on January 17, 1992. It was not rendered insufficient merely because Walton had been an accomplice. "Where parties in crime testify against each other, their testimony must be recognized as coming from a corrupt source and therefore must be subject[ed] to the closest scrutiny." Commonwealth v. Todt, 318 Pa.Super. 55, 63, 464 A.2d 1226, 1230 (1983). However, guilt may be predicated even upon the uncorroborated testimony of an accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Todt, supra.

In the instant case, Walton's testimony was corroborated by the testimony of William Dennison and, in part, by the testimony of Cindy Wimer. Dennison's testimony was not rendered incompetent by his prior identification of Walton as the robber. He was questioned about his prior identification and offered an explanation for the mistaken nature thereof. His identification of appellant at trial, however, remained unshaken by cross-examination. The credibility of his testimony, therefore, was for the jury. Commonwealth v. Davis, 313 Pa.Super. 355, 360-361, 459 A.2d 1267, 1270 (1983).

Appellant argues that Cindy Wimer's testimony was incompetent and should have been disallowed because she was not qualified to express an opinion that the robber's gait was similar to his. Her testimony was clearly relevant to establish the identity of the robber. See: Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990) (voice identification testimony); Commonwealth v. Miller, 385 Pa.Super. 186, 560 A.2d 229 (1989) (same).

Whether testimony constitutes fact or opinion is sometimes a difficult determination to make, for at times it may include elements of both. That appellant walked with a gait similar to that of the robber was such testimony. Whether fact or opinion, however, the testimony was properly received by the trial court.

In Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978), the Superior Court elected to adopt the approach espoused by Rule 701 of the Federal Rules of Evidence. This approach is as follows:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Here, the witness's opinion that the gaits of the robber and appellant were similar was rationally based on her perception and was essential to a clear understanding of her testimony. The trial court did not err by allowing the jury to hear this testimony by the witness.

To establish a claim for ineffective assistance of counsel, appellant must show that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate appellant's interests; and (3) counsel's ineffectiveness prejudiced appellant. Commonwealth v. Marshall, 534 Pa. 488, 496, 633 A.2d 1100, 1104 (1993); Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992); Commonwealth v. Stokes, 532 Pa. 242, 250, 615 A.2d 704, 708 (1992). Trial counsel is presumed to have been effective, and it is appellant's burden to prove otherwise. Commonwealth v. Marshall, supra...