Commonwealth v. Johnson

• Decision Date: 29 June 2018
• Docket Number: No. 2721 EDA 2017,2721 EDA 2017
• Citation: 192 A.3d 1149
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Darrell JOHNSON, Appellant
• Court: Pennsylvania Superior Court

192 A.3d 1149

COMMONWEALTH of Pennsylvania, Appellee

v.Darrell JOHNSON, Appellant

No. 2721 EDA 2017

Superior Court of Pennsylvania.

Submitted March 26, 2018

Filed June 29, 2018

Lee B. Awbrey, Public Defender, and Dean M. Beer, Public Defender, Norristown, for appellant.

Kevin R. Steele, Assistant District Attorney, Robert M. Falin, Assistant District Attorney, and Adrienne D. Jappe, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: SHOGAN, J., NICHOLS, J., and PLATT,^* J.

OPINION BY PLATT, J.:

Appellant, Darrell Johnson, appeals from the judgment of sentence imposed following his jury conviction of two counts each of robbery and aggravated assault, and one count each of criminal conspiracy, person not to possess a firearm, and firearms not to be carried without a license.¹ We affirm.

We take the relevant facts and procedural history of this case from our independent review of the certified record. On August 20, 2016, at about 10:30 p.m., the victim, Anthony Gibbons, went to a bar with Appellant's cousin and accomplice in this crime, Latia Lofton. While they were at the bar, Lofton went in and out of the restroom multiple times, and used her cellphone to send text messages and make a phone call. When Gibbons and Lofton went outside to smoke a cigarette at Lofton's request, Appellant approached them with his face covered. Appellant was carrying a gun, and he snatched Lofton's pocketbook. Appellant put the gun to Gibbons' head and demanded his cellphone, keys and money.² Gibbons complied, and then pulled his own gun from his car. Both men started shooting, and Gibbons was struck in his foot and back. The bar owner called 911, and police and an ambulance responded to the scene.

Police recovered Lofton's cellphone, and downloaded and reviewed text messages from the night of the robbery indicating that she and Appellant planned the robbery together. One of the text messages read: "You gone [sic] see us out front. We in parking lot. Take my purse too." (N.T. Trial, 3/22/17, at 77, 87). Lofton eventually gave a statement to police confirming her involvement in the robbery.³ Cell site analysis performed on Appellant's cellphone placed him in the general vicinity of the bar on the night of the incident. Police recovered a handgun from Appellant's home during a search of his residence. The gun matched the firearm used in the robbery, and DNA testing showed Appellant's DNA on the gun, along with two other contributors.

Appellant proceeded to a jury trial on March 22, 2017. At the conclusion of the Commonwealth's case, defense counsel moved to dismiss the firearms not to be carried without a license charge, arguing that the Commonwealth failed to establish certain elements of the crime. The trial court denied the motion. The jury found Appellant guilty of the above-listed offenses on March 24, 2017. On July 19, 2017, the trial court sentenced Appellant to an aggregate term of not less than twenty-five nor more than fifty years' incarceration.

Appellant, acting pro se , filed post-sentence motions dated July 25, 2017 and docketed on August 2, 2017, which the trial court accepted as timely under the prisoner mailbox rule.⁴ On August 8, 2017, the trial court entered an order denying the post-sentence motions and advising Appellant of his right to appeal. Appellant filed a timely counseled notice of appeal on August 25, 2017. He timely complied with the trial court's order to file a concise statement of errors complained of on appeal, and the court entered an opinion on December 18, 2017. See Pa.R.A.P. 1925.

Appellant raises three questions for our review:

1. Whether the trial court erred in denying Appellant's challenge to the weight of the evidence[?]

2. Whether the trial court erred in denying defense counsel's request for a corrupt and polluted source charge in the final charge to the jury[?⁵ ]

3. Whether the trial court erred in failing to grant Appellant's motion to dismiss the firearms charge at the end of the Commonwealth's case[?]

(Appellant's Brief, at 7) (unnecessary capitalization omitted).

Appellant first challenges the weight of the evidence supporting his conviction, claiming that Latia Lofton's testimony regarding the robbery was not credible or believable.⁶ (See Appellant's Brief, at 16–25). Appellant's argument focuses primarily on the discrepancy between the testimony of Lofton and Gibbons regarding the amount of money involved in the incident, which Appellant claims raises reasonable doubt as to whether a robbery occurred. (See id. at 16–17, 20–22, 25; see also supra at *2 n.2). Appellant asserts that "if [Gibbons] had a couple hundred dollars on him and Lofton claimed [Appellant] took [$]900.00 from [Gibbons] and gave [$]300.00 to Lofton, no robbery took place." (Appellant's Brief, at 25; see id. at 16, 22). This issue does not merit relief.

At the outset, we note that the weight attributed to the evidence is a matter exclusively for the fact finder, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The grant of a new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that, notwithstanding all of the facts, certain facts are so clearly of greater weight, that to ignore them or to give them equal weight with all of the facts is to deny justice.

An appellate court's purview:

is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.

An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice. [T]he trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.

Commonwealth v. Hicks , 151 A.3d 216, 223 (Pa. Super. 2016), appeal denied , 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).

Here, the trial court determined that the testimony of Lofton and Gibbons, when viewed as a whole, was complimentary, and that the difference regarding the amount of money taken was a minor discrepancy. (See Trial Ct. Op., at 6–7). Upon review of the record, we agree. As the trial court points out, the jury, as factfinder, heard each of the witnesses' testimony concerning the amount of money involved in the robbery and was free to resolve any conflict. Therefore, we conclude that the trial court did not abuse its discretion in finding that the jury's verdict did not shock its conscience. See Hicks , supra at 223.⁷ Appellant's first issue lacks merit.

Appellant next challenges the trial court's denial of his request that it repeat, during its final charge to the jury, the corrupt and polluted source instruction that it had already issued immediately before Latia Lofton's testimony. (See Appellant's Brief, at 26–29; see also supra at *4 n.5). Appellant acknowledges that the court gave this instruction before Lofton's testimony, but contends that it was necessary for the court to restate it in its final charge. (See Appellant's Brief, at 26–27, 29). This issue does not merit relief.

When reviewing jury instructions, we are governed by the following standard:

Our standard of review in assessing a trial court's jury instructions is as follows:

[W]hen evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper.... Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error.

Commonwealth v. Patterson , 180 A.3d 1217, 1226 (Pa. Super. filed Feb. 8, 2018) (citations omitted).

The Pennsylvania Rules of Criminal Procedure provide trial courts with the authority to give instructions to the jury "before the taking of evidence or at anytime during the trial as the judge deems necessary and appropriate for the jury's guidance in hearing the case." Pa.R.Crim.P. 647(E). Regarding the propriety of issuing a corrupt and polluted source instruction, this Court has explained:

... [I]n any case where an accomplice implicates the defendant, the judge should tell the jury that the accomplice is a corrupt and polluted source whose testimony should be viewed with great caution....

The ‘corrupt source’ charge in particular is designed specifically to address situations where one accomplice testifies against the other to obtain favorable treatment. It directs the jury to view the testimony of an accomplice with disfavor and accept it only with care and caution.

Lawrence , supra at 44–45 (citations and most quotation marks omitted).

Here, as noted, the record reflects that the trial court did issue a thorough and comprehensive corrupt and polluted source instruction, spanning more than two pages of the trial transcript, immediately before Lofton's testimony. (See N.T. Trial, 3/22/17, at 78–80). When defense counsel requested that the court repeat the instruction as part of its final charge, it declined to do so, stating: "I'm going to tell the jury again, as I've told them previously, the instructions are considered as a connected series and I'll remind them of the things I said earlier." (N.T. Trial, 3/23/17, at 102). At the beginning of its final charge, the court explained this continuum in instructions to the jury; stated that it would be happy to repeat any previously issued instruction; and directed that all of its instructions, taken together, constitute the law the jury must follow. (See N.T. Trial, 3/24/17, at 43). The court then issued a general charge regarding witness credibility, instructing the jury to consider whether the...