Commonwealth v. Johnson

Decision Date02 February 2015
Docket NumberNo. 1564 EDA 2014,J-S06011-15,1564 EDA 2014
CourtPennsylvania Superior Court
PartiesCOMMONWEALTH OF PENNSYLVANIA, Appellee v. DARRYL JOHNSON, Appellant

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered April 24, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0000835-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:

Appellant, Darryl Johnson, appeals from the judgment of sentence of an aggregate term of 54 to 120 months' incarceration, followed by 10 years' probation, imposed after he was convicted of persons not to possess a firearm, carrying a firearm without a license, and conspiracy to commit robbery. Appellant challenges the sufficiency of the evidence to sustain his convictions. After careful review, we affirm.

Appellant and his co-defendant, Phillip Freeman, were arrested on October 19, 2012. Appellant was charged with the above-stated offenses,and he and Freeman proceeded to a jury trial on February 4, 2014.1 The trial court summarized the facts established at trial as follows:

On October 19, 2012, at 2:00 A.M., David Davis (hereinafter referred to as "Mr. Davis" or "Victim") was returning to his residence after leaving the Harrah's Casino in the City of Chester. Mr. Davis was coming home via a bus that dropped him off at the corner of Third and Kerlin Streets, City of Chester. After he exited the bus, Mr. Davis proceeded north on Kerlin Street. Mr. Davis was enroute [sic] to West Tenth Street. As Mr. Davis was proceeding north on Kerlin Street, a silver Sports Utility Vehicle (hereinafter referred to as "SUV") turned onto Kerlin Street from Fifth Street. While Mr. Davis crossed this intersection, this motor vehicle stopped, and one of the individuals inside the SUV called out to him. Mr. Davis turned to face the vehicle and was instructed by the unknown voice from within the motor vehicle to come over to the silver SUV. Mr. Davis informed the occupants of the motor vehicle that he did not have time to come over to the silver SUV, and that at that early hour of the morning he did not wish to speak to anyone. The driver then brandished a firearm and held it outside the window[,] forcing Mr. Davis at gunpoint to approach the motor vehicle. During this initial interaction, Mr. Davis was about fifteen (15) to twenty (20) feet from the SUV.

As Mr. Davis approached the motor vehicle, he observed a young black male with a medium complexion sitting in the driver's seat of the silver SUV continuing to aim a firearm at him. Mr. Davis determined that the individual in the driver's seat of the motor vehicle was the same person who had previously demanded he come over to the SUV. Mr. Davis believed the driver was in some way intoxicated based upon a chemical odor emanating from him[,] and [based upon] the driver's demeanor. At trial, Mr. Davis identified the gun wielding driver of the silver SUV as co-Defendant Freeman.

Mr. Davis also observed an individual in the front passenger seat of the motor vehicle. The passenger of the silver SUV was also a young black male who was wearing a red baseball cap, dressed in dark clothing, and had a beard. Mr. Davis at trial identified this occupant of the motor vehicle as [Appellant]. Mr. Davis advised the court that [Appellant] never spoke during the course of the robbery. There were two (2) additional voices23 coming from the backseat of the silver SUV[.] Mr. Davis described these two (2) voices as sounding as though they were the orchestrators of the robbery.
23 At the time of their arrest, [Appellant and Freeman] were the only two (2) individuals inside the motor vehicle.
Mr. Davis quickly surrendered forty-one dollars ($41.00) to the driver of the motor vehicle, co-Defendant Freeman. Mr. Davis testified that the denomination of the forty-one dollars ($41.00) was two (2) twenty dollar ($20.00) bills and a single one dollar ($1.00) bill. On Mr. Davis['] turning over his cash to the driver, the silver SUV pulled away and traveled south on Kerlin Street. Mr. Davis continued north on Kerlin Street and contacted the police.
Responding to his emergency call, Officer Kyle Battinieri arrived and met with Mr. Davis somewhere between Seventh and Ninth Streets. As Mr. Davis was explaining the robbery to Officer Battinieri, the officer was dispatched to another incident. Officer Battinieri instructed Mr. Davis to proceed northbound to Ninth and Kerlin Streets to a Sunoco gas station where he would rendezvous with him. Shortly after this first interaction, Officer Battinieri again met with Mr. Davis at the nearby Sunoco station, [at] Ninth and Kerlin Streets. Officer William Dowd soon also arrived. While Mr. Davis was explaining the robbery to the responding officers, Officer Dowd pointed to a vehicle in the gas station parking lot that matched the description of the involved motor vehicle Mr. Davis was then relaying to the two (2) officers. Mr. Davis confirmed that the vehicle observed by Officer Dowd was the SUV used during the robbery. Mr. Davis then saw an individual walking to the vehicle that was dressed in a similar manner to the firearm brandishing driver. This individual entered the SUV's driver [side] door. Officer Dowd in his marked police car began to drive over to the silver SUV. When Officer Dowd approached this vehicle, it left the gas station, prompting Officer Dowd to proceed after the SUV.
Officer Dowd pursued the motor vehicle and conducted a stop at Tenth and Butler Streets. On Officer Dowd['s] approaching from the rear [] driver's side of the silver SUV, he observed the front passenger side door open and the passenger begin to exit the vehicle. With his firearm drawn[,] Officer Dowd ordered the passenger to reenter the motor vehicle. The passenger followed this instruction and returned within the SUV. At trial, Officer Dowd identified the driver as co-Defendant Freeman and the sole passenger as [Appellant]. After additional police personnel arrived on the scene, Officer Mark Barag instructed [Appellant] to step out of the motor vehicle. A pat-down or frisk of [Appellant] was done. There were no weapons found on [Appellant's] person.
The driver of the vehicle, co-Defendant Freeman, necessitated police removal from the silver SUV due to his failure to comply with the officer[s'] directives of exiting the motor vehicle and making visible to the officers his hands. Co-Defendant Freeman was unable to stand on his own when he was finally outside the silver SUV. Because of co-Defendant Freeman['s] constantly moving and continuing to hide his hands from officers' view, a canine unit was released to subdue him. Eventually, with the help of the police canine the officers were able to control co-Defendant Freeman. A pat-down was conducted of the co-Defendant that did not reveal any firearms. At no point during the struggle with co-Defendant Freeman did Officer Barag observe co-Defendant Freeman remove a weapon and/or slide anything under the vehicle to the passenger side of the SUV.
After helping secure the co-Defendant, Officer Barag returned to the passenger side of the vehicle and proceeded to look underneath the silver SUV. It was then that he observed a firearm on the pavement located directly beneath the passenger seat, about six (6) inches to one (1) foot underneath the motor vehicle on the front passenger side. Officer Barag informed Officer Johnathan Ross of the firearm. Officer Ross retrieved the firearm from under the motor vehicle. After securing the firearm, Officer Ross determined that the handgun was loaded and a bullet was in the chamber of the firearm. Officer Ross found the firearm completely dry, despite it having been raining previous[ly] that night[,] as well as at the time of the stop.
[Appellant and Freeman] were arrested and subsequently processed at the Chester police station by ... Officer RooseveltTurner. The property that was found on [Appellant's] person during a search at the police station included: A baseball cap; [a] blue coat; [s]hoelaces; [a] belt[;] [f]orty-six dollars ($46.00) in cash; and [t]welve cents (12¢) in change. The Chester Police Department Property Record recounted the denomination of the currency retrieved from [Appellant] as two (2) twenty dollar ($20.00) bills and six (6) one dollar ($1.00) bills. Officer Turner additionally recovered three (3) bullets from [Appellant's] coat pocket.
When Officer Turner next approached co-Defendant Freeman to conduct his custodial search, Officer Turner saw what on first view appeared to be "trash" in the immediate vicinity of where co-Defendant Freeman was sitting. On closer inspection, this "trash" was a torn-up box of ammunition. The box was for twenty-two (.22) caliber bullets. Officer Turner also noticed bullets on the floor surrounding co-Defendant Freeman and in a trashcan located near the co-Defendant. These unspent projectiles matched the bullets seized from co-Defendant Freeman's person. These bullets were as well identical to the bullets found on [Appellant] and those within the firearm recovered at the scene of [Appellant's and Freeman's] arrests.

Trial Court Opinion, 7/18/14, at 8-12 (citations to the record omitted).

Appellant stipulated at trial that he did not have a license to carry a firearm, and that he is a person who is prohibited from possessing a firearm under 18 Pa.C.S. § 6105. Based on these stipulations and the above-stated facts, Appellant was convicted of possessing a firearm without a license, persons not to possess a firearm, and criminal conspiracy to commit robbery. On April 24, 2014, Appellant was sentenced to a term of 54 to 120 months' incarceration for persons not to possess a firearm, a concurrent term of 42 to 84 months' incarceration for possessing a firearm without a license, and a consecutive term of 10 years' probation for conspiracy to commit robbery.

Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b)...

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