Commonwealth v. Tejada

• Decision Date: 06 January 2015
• Docket Number: No. 2279 EDA 2013,2279 EDA 2013
• Citation: 2015 PA Super 2,107 A.3d 788
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Nicholas TEJADA, Appellant.
• Court: Pennsylvania Superior Court

107 A.3d 788

2015 PA Super 2

COMMONWEALTH of Pennsylvania, Appellee

v.Nicholas TEJADA, Appellant.

No. 2279 EDA 2013

Superior Court of Pennsylvania.

Argued Sept. 9, 2014.

Filed Jan. 6, 2015.

Ruth A. Moyer, Philadelphia, for appellant.

Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: DONOHUE, WECHT and PLATT^* , JJ.

Opinion

OPINION BY DONOHUE, J.:

Nicholas Tejada (“Tejada”) appeals from the March 25, 2013 judgment of sentence entered by the Philadelphia County Court of Common Pleas following his convictions of two counts of criminal conspiracy to commit robbery.¹ Upon review, we find his challenges to the sufficiency and weight of the evidence to be without merit as the evidence presented at trial supported a finding that he was the individual who committed the robberies in question. We find his evidentiary challenge waived in part, as one of the arguments raised on appeal was not raised before the trial court, and find the other argument is meritless. Lastly, we conclude that he waived his challenges to the discretionary aspects of his sentence based upon his failure to raise the specific arguments below that he now makes on appeal, having raised them for the first time in his concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). In so holding, we recognize that the three-judge panel decisions in Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996), and Commonwealth v. Clinton, 453 Pa.Super. 385, 683 A.2d 1236 (1996), finding discretionary aspects of sentencing claims can be preserved when raised for the first time in a 1925(b) statement, were overruled by implication by the en banc panel of this Court in Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278 (Pa.Super.2004) (en banc). We therefore affirm Tejada's judgment of sentence.

The trial court provided the following summary of the facts adduced at trial:

On January 2, 2012 the first victim, Emily Orton, arrived home from work at about 10:15 pm. (N.T. 11/7/2012 at 25–26). She parked her car near the intersection of 9th and Kimball Streets in Philadelphia. (Id. ) While walking on the sidewalk, she noticed [Tejada] and another male about ten feet away from her. (Id. at 26–28). They were walking directly toward her. (Id. ) [Tejada]'s coconspirator smiled at her and looped around behind her while [Tejada], with his face partially covered, pressed a gun against this victim's stomach and demanded “give me your purse, ma'am.” (Id. at 3032). [Tejada] snatched the victim's purse from her body and entered the backseat of an older black, beat-up Honda which made an incredibly loud noise as it drove away. (Id. at 33, 37).

Inside the victim's purse was her purple wallet with ID cards, credit cards, and $60 United States currency. (Id. at 37–38). The victim contacted the police and returned to her apartment. (Id. at 38).

Twenty minutes later, the second and third victims, Irene Thurston and Stacie Evans, respectively, had parked their cars and greeted each other near the corner of 4th and Emily Streets. (Id. at 77–78). Both victims noticed an old beat-up Honda with a long white scratch and a loud muffler. (Id. ) With four Hispanic men inside, this vehicle passed them while travelling on Emily Street. (Id. ) As the two victims continued to chat, the car turned around the block. (Id. ) Alarmed, Ms. Thurston noticed two men walking across an empty lot toward her and Ms. Evans. (Id. at 81–82). Terrified, Ms. Thurston observed [Tejada], armed with a gun, run toward Ms. Evans. (Id. at 83). Also terrified that [Tejada] was brandishing a gun, Ms. Evans quickly dropped her purse. (N.T. 11/8/12 at 13). [Tejada] grabbed the purse. (Id. ) Inside Ms. Evan's [sic] purse was her license, credit cards, two checkbooks, a necklace, a digital camera, and $5–10 in United States currency. (Id. at 20). Nothing was taken from Ms. Thurston. (N.T. 11/7/12 at 86). The two victims immediately called the police. (N.T. 11/8/12 at 20).

In response to the flash information and radio calls for the above incidents, Officers Padilla and Brown drove to the area of 2200 S. Mildred St. (Id. at 95). The officers witnessed [Tejada] exiting the driver seat of the above-mentioned Honda, while the coconspirator exited the passenger seat. (Id. at 96). Officer Padilla stopped [Tejada] while Officer Brown chased the co-conspirator on a foot; the coconspirator was eventually apprehended. (Id. at 97 98). The officers recovered victim Evans['] license on the ground next to the front passenger door of the Honda as well as two pocketbooks in the backseat. (Id. at 99–100).

The officers escorted all three victims to the area of 2200 S. Mildred Street, at which time they all identified the black Honda as the car they had seen at their respective robbery locations. (Id. at 23, N.T. 11/7/2012 at 39–42, 87–91). Ms. Orton did not identify [Tejada], but her belongings were all recovered in the back of the black Honda. (N.T. 11/7/2012 at 39–42). Ms. Evans['] purse, along with most of her belongings, was [sic] recovered in the back seat of the car. (N.T. 11/8/2012 at 23). Ms. Thurston identified [Tejada] as the perpetrator brandishing the firearm at 4th and Emily Streets. (N.T. 11/7/2012 at 87–91). Officer Padilla discovered that the owner of the Honda resided at 2241 Darien Street, and that other men might have run into the house. (N.T. 11/8/2012 at 101). While the officer was standing outside the house, the co-conspirator opened the door and asked what was going on. He allowed Officer Padilla to enter the house to look for other suspects. (Id. at 105). Officer Padilla and her supervisor searched the house and discovered Ms. Evan's [sic] checkbooks in an upstairs bedroom. (Id. at 106).

Trial Court Opinion, 12/26/13, at 3–5.

On November 15, 2012, a jury convicted Tejada of two counts of conspiracy to commit robbery, but acquitted him of two counts each of robbery, carrying a firearm without a license, carrying a firearm on public streets in Philadelphia, and possessing an instrument of crime.² On March 25, 2013, the trial court sentenced Tejada to four to eight years of incarceration for each count of conspiracy to run consecutively for an aggregate prison sentence of eight to sixteen years.

Tejada filed post-sentence motions on March 27, 2013, which the trial court denied on July 29, 2013. On August 7, 2013, Tejada filed a timely notice of appeal followed by a court-ordered 1925(b) statement. The trial court thereafter filed a responsive opinion pursuant to Pa.R.A.P.1925(a).

On appeal, Tejada raises the following issues for our review, which we have reordered for ease of disposition:

I. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, was the evidence insufficient to sustain [Tejada's] [c]onspiracy convictions?

II. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, were [Tejada's] [c]onspiracy convictions against the weight of the evidence?

III. Under the Sixth and Fourteenth Amendments of the U.S. Constitution as well as Article I, § 9 of the Pennsylvania Constitution, did the [t]rial [c]ourt err in permitting a prosecution witness to “identify” [Tejada's] arrest photograph?

IV. Under the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution as well as Article I, §§ 9, 13 of the Pennsylvania Constitution, did the [t]rial [c]ourt abuse its discretion in sentencing [Tejada]?

Tejada's Brief at 5.³ On October 31, 2014, we issued a memorandum decision affirming the judgment of sentence. We granted Tejada's motion for reconsideration to clarify that the holdings in Egan and Clinton (finding preserved discretionary aspects of sentencing claims raised for the first time in a 1925(b) statement) are no longer good law in the wake of Melendez–Rodriguez.

Tejada's first issue on appeal challenges the sufficiency of the evidence to convict him of conspiracy to commit robbery. “Whether sufficient evidence exists to support the verdict is a question of law; our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Murray, 623 Pa. 506, 83 A.3d 137, 151 (2013). We review the evidence in the light most favorable to the verdict winner to determine whether there is sufficient evidence to allow the jury to find every element of a crime beyond a reasonable doubt. Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa.Super.2014).

In applying the above test, we may not weigh the evidence and substitute our judgment for 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. 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 finder 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.

Id. (citation omitted).

Tejada does not claim that no robberies occurred or that there was not a conspiracy to commit them; rather, he states that the evidence was insufficient to prove that he was a party to the conspiracy—that he was anything more than merely present at the time the robberies occurred.⁴ Tejada's Brief at 38–46. The trial court found that the evidence presented, including Ms. Thurston's identification of Tejada both at the scene and at trial as the individual who robbed Ms. Evans, was sufficient to sustain his convictions of conspiracy to commit...