Com. v. Utsey, T. ( 2015 )

J-S77034-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TERON UTSEY, :
:
Appellant : No. 1676 EDA 2014
Appeal from the Judgment of Sentence Entered April 28, 2014,
in the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003508-2012
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 05, 2015
Teron Utsey (Appellant) appeals from the judgment of sentence
entered on April 28, 2014, following his conviction for burglary and
conspiracy to commit robbery. We affirm.
The trial court summarized the underlying facts of this matter as
follows:
Appellant’s convictions arose out of an early morning
brutal home invasion. On March 26, 2011, Appellant and several
co-conspirators agreed that they would ste[a]l money and pills
from the victim, Scott Hopper, at his residence located at 145
East Moreland Avenue, Hatboro, Montgomery County. Appellant
was armed with a semi-automatic gun and a co-conspirator was
armed with a crow-bar. The victim sustained serious injuries.
On January 22, 2014, Appellant’s trial commenced. At
trial, the Commonwealth presented the testimony of two
investigating police officers, Sergeant Mark Ru[e]gg and
Detective Sergeant Cameron Goold[;] the victim, Scott
Hopper[;] and two of Appellant’s co-conspirators, Michael
* Retired Senior Judge assigned to the Superior Court.
J-S77034-14
Wroblewski ([Wroblewski]) and Troy Schussler ([Schussler]).
After the evidence was presented, the jury returned a verdict of
guilty of burglary and conspiracy, and not guilty of robbery,
terroristic threats and firearms not to be carried without a
license.
On April 28, 2014, [the trial court] sentenced Appellant. A
timely post-sentence motion was filed, and ultimately denied on
May 8, 2014. This appeal followed on May 28, 2014.
Trial Court Opinion, 6/16/2014, at 1-2.
Appellant presents the following issues for our consideration:
[1.] Whether the evidence presented at trial was insufficient as
a matter of law to establish beyond a reasonable doubt
that … Appellant entered the premises of Scott Hopper
with the intent to commit a crime therein and /or the
weight of the evidence presented demonstrated a
reasonable doubt to whether [Appellant] had committed
the crimes charged and the court committed an error of
law and abuse of discretion in finding [Appellant] guilty of
the crimes charged.
[2.] Whether the trial court committed an error of law and/or
abuse of discretion in giving a flight/consciousness of guilt
jury instruction based upon the fact that [Appellant] had
removed a GPS ankle monitor and had failed to appear at
a court proceeding.
Appellant’s Brief at unnumbered page 4 (unnecessary capitalization and trial
court answers omitted).
We consider Appellant’s sufficiency claim mindful of the following.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. 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
-2-
J-S77034-14
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 trier 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.
Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en
banc) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa.
Super. 2008)).
At the time that Appellant committed the present crimes, burglary was
defined as follows: “A person is guilty of burglary if he enters a building or
occupied structure, or separately secured or occupied portion thereof, with
intent to commit a crime therein, unless the premises are at the time open
to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S.
§ 3502(a) (superceded).
A conspiracy conviction requires proof of (1) an intent to
commit or aid in an unlawful act, (2) an agreement with a co-
conspirator and (3) an overt act in furtherance of the conspiracy.
Because it is difficult to prove an explicit or formal agreement to
commit an unlawful act, such an act may be proved inferentially
by circumstantial evidence, i.e., the relations, conduct or
circumstances of the parties or overt acts on the part of the co-
conspirators.
Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (quoting
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)).
-3-
J-S77034-14
The offense underlying the conspiracy was robbery, “which requires proof, in
relevant part, that in the course of committing a theft, the defendant
threatened another with or intentionally put another in fear of immediate
serious bodily injury.” Commonwealth v. Tejada, __ A.3d __, 2015 WL
62931, *3 n.4 (Pa. Super. filed January 6, 2015) (citing 18 Pa.C.S.
§ 3701(a)(1)(ii)).
Appellant argues that “[t]he jury’s verdict in finding … [Appellant] not
guilty of robbery, terroristic threats and the firearms charge simple [sic]
demonstrate[s] that the evidence was insufficient as a matter of law to find
… Appellant guilty of burglary and conspiracy.” Appellant’s Brief at
unnumbered page 7 (unnecessary capitalization omitted). Appellant fails to
cite any legal authority in support of this claim, and we conclude that it is
without merit. “Consistency in criminal verdicts is not necessary, and logical
inconsistencies will not serve as grounds for reversal. Inconsistent verdicts
are proper so long as the evidence is sufficient to support the convictions the
jury has returned.” Commonwealth v. Maute, 485 A.2d 1138, 1145 (Pa.
Super. 1984) (citation omitted).
The relevant testimony presented at trial is as follows. Wroblewski
testified that on March 25, 2011, in the course of driving around and trying
to figure out plans for the night, “KG” told Wroblewski and some others
about “this guy that had some money and some drugs and stuff in his
house.” N.T., 1/22/2014, at 49-51. They talked about the “whole
-4-
J-S77034-14
situation,” meaning the man with the money and pills, and Robert Johnson
a/k/a “J” made some phone calls looking for someone with a gun. Id. at 47,
51-52. After driving to various locations and retrieving a trash bag and a
crowbar, the group continued to drive around until J could locate someone
with a gun. Id. at 52-53. After J located someone, they went to a
Starbucks parking lot in Doylestown, where J got out of the van to meet
Appellant. Id. at 53. Subsequently, they followed Appellant back to his
house. Id. at 54. When they arrived, Appellant got out of his car, got a gun
from the trunk of his car, and put it in his waistband. Id. at 56-57. They
proceeded to an upstairs bedroom in Appellant’s house, where they
discussed “how it was going to go down” and grabbed stuff they needed,
such as masks. Id. at 57-59. Appellant had changed into dark clothing.
Id. at 59. Then, Appellant, Schussler, J, KG, and Wroblewski left for
Horsham. Id. at 59-60.
Wroblewski further testified that once in Horsham, they parked down
the street from Hopper’s home. Id. at 60-61. Wroblewski, KG, and
Appellant got out of the van and walked up to Hopper’s home. Id. KG got
into the house through a window, then opened the back door to let Appellant
and Wroblewski inside the house. Id. at 62. Wroblewski waited by the back
door for lookout, and KG and Appellant went upstairs. Id. Wroblewski
heard two gunshots. Id. at 62-63.
-5-
J-S77034-14
Schussler testified that after being turned away from a pub on the
night in question, he and some others eventually met Appellant in front of a
Starbucks in Doylestown. N.T., 1/23/2014, at 4-7. Then, Appellant got into
Schussler’s van, and they went to Hatboro. Id. at 7. When they arrived,
Appellant, KG, who had a crowbar, and Wroblewski got out of the vehicle,
while Schussler and J remained in the vehicle. Id. at 7-8.
Schussler testified that after the men exited the vehicle, Schussler and
J drove around the block, went to Wawa, and then parked at the end of the
street. Id. at 8. While sitting in the vehicle, Schussler heard two or three
loud bangs that sounded like gunshots. Id. After about 15 or 20 minutes,
Wroblewski came out with a safe along with Appellant. Id. They left and
went to Warminster, to Appellant’s house. Id. at 8-9. Schussler testified
that, at his house, he saw Appellant with a semi-automatic type gun. Id. at
10.
Hopper testified that on the night of March 25, 2011, his girlfriend
went out while he stayed home and watched TV. N.T., 1/22/2014, at 32-33.
He had gone to bed sometime after midnight and was startled awake by two
fully masked intruders, one armed with a crowbar and one armed with a
semi-automatic gun. Id. at 33-35. The masked intruders started yelling at
Hopper, demanding money and a safe. Id. at 35. Hopper was in fear for his
life and a struggle ensued, where Hopper was beaten about the head and
body. Id. at 36-37. During the course of that struggle, two gunshots were
-6-
J-S77034-14
discharged into the ceiling by one of the masked men. Id. at 36. Hopper
testified that the assailants took a safe with them. Id. at 38, 45.
This evidence, viewed in the light most favorable to the
Commonwealth, establishes that Appellant participated in the planning of the
invasion of Hopper’s home for money and drugs. Appellant supplied the gun
and the masks and had dressed in dark clothing in preparation for the home
invasion. Appellant then surreptitiously entered the house and participated
in the attack of Hopper while demanding money and a safe. Based on the
foregoing, it is clear that the Commonwealth proved the necessary elements
of the crimes that Appellant challenges on appeal.
Appellant also argues that the verdicts were against the weight of the
evidence. Our standard of review is well-settled:
The weight given to trial evidence is a choice for the factfinder. If
the factfinder returns a guilty verdict, and if a criminal defendant
then files a motion for a new trial on the basis that the verdict
was against the weight of the evidence, a trial court is not to
grant relief unless the verdict is so contrary to the evidence as to
shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion, and
when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.
-7-
J-S77034-14
Moreover, when evaluating a trial court’s ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.
Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (quoting
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).
Appellant essentially argues that his convictions were based solely on
the testimony of his co-conspirators, which the jury clearly did not believe as
evidenced by his acquittals on other charges. Appellant also notes that
there was no DNA evidence or other credible corroborating evidence
establishing his guilt, particularly in light of those acquittals.
Appellant’s contention consists of nothing more than a variation of his
unavailing sufficiency argument and a challenge to the credibility
determinations made by the jury. It is well settled that the jury is “free to
believe all, part, or none of the evidence and to determine the credibility of
the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa.
Super. 2003).1 In concluding that the weight of the evidence supported the
jury’s verdict, the trial court explained that Appellant attempted to attack
1
In this regard, we disagree with Appellant’s contention that, as evidenced
by the acquittals, the jury clearly disbelieved the co-conspirators’ testimony.
See Commonwealth v. Maxwell, 421 A.2d 699, 702 (Pa. Super. 1980)
(“The fact that the verdicts may be interpreted to reflect the jury’s disbelief
of, or doubt about, some of the victim’s testimony concerning [one] incident
does not mean that the jury could not believe the victim’s testimony
concerning [another] incident. The jury was not required to find all of her
testimony either worthy or unworthy of disbelief; it was entitled to believe
all, part, or none of the testimony.”).
-8-
J-S77034-14
the credibility of the co-conspirators at trial, but that “the evidence that the
jury believed and to which both [Wroblewski] and [Schussler] were
consistent on was that Appellant was involved in the planning and
commission of the home invasion. Defense counsel’s attempts at attacking
their credibility did not sway the jury.” Trial Court Opinion, 6/16/2014, at 9.
We discern no abuse of discretion in the trial court’s determination and,
thus, Appellant is not entitled to relief on his weight-of-the-evidence claim.
Finally, relying upon Commonwealth v. Babbs, 499 A.2d 1111 (Pa.
Super. 1985), Appellant argues that it was improper for the trial court to
give a flight/consciousness of guilt instruction on the basis that Appellant
failed to appear for trial. Appellant contends that the stipulated evidence
regarding his failure to appear did not show that he was attempting to avoid
prosecution or hide from law enforcement.
We review jury instructions with deference to the trial court and may
reverse the lower court only where it abused its discretion or committed an
error of law. Commonwealth v. Hornberger, 74 A.3d 279, 282 (Pa.
Super. 2013).
[W]hen reviewing jury instructions for error, the charge must be
read as a whole to determine whether it was fair or prejudicial.
The trial court has broad discretion in phrasing its instructions,
and may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its
consideration.
Id. at 283 (quoting Commonwealth v. Sepulveda, 55 A.3d 1108, 1141
(Pa. 2012)).
-9-
J-S77034-14
In Babbs, a panel of this Court observed:
The rule of law in this Commonwealth is that “[w]hen a person
commits a crime, knows that he is wanted therefor, and flees or
conceals himself, such conduct is evidence of consciousness of
guilt, and may form the basis in connection with other proof
from which guilt may be inferred.” This rule has not heretofore
been expanded to permit an inference of guilt merely because a
defendant has failed to appear for trial. A failure to appear on
the day set for trial does not have the same connotation as pre-
arrest flight or concealment and cannot be said to point
unerringly to consciousness of guilt.
Babbs, 499 A.2d at 1113 (citations omitted) (quoting Commonwealth v.
Coyle, 203 A.2d 782, 789 (1964)). Applying this rule to the facts before it,
the Babbs Court held that the defendant’s absence did not suggest guilt:
In the instant case, appellant did not flee or conceal his
whereabouts either prior to or at any time after arrest. After
appellant had appeared on several occasions, he failed to appear
on a continued trial date. He did not flee or conceal himself,
however, and was found shortly thereafter at his known
residence. He said that he had failed to appear on the continued
trial date because of a dispute with his attorney. We perceive in
these circumstances no basis for drawing an inference that
appellant’s failure to appear on the continued trial date was
attributable to a consciousness of guilt.
***
… There was not a necessary connection between a mere post-
arrest failure to appear for trial and consciousness of guilt. This
is particularly true where, as here, the failure to appear was not
accompanied by flight and the defendant did not move from or
leave his known, permanent place of residence. Therefore, we
will reverse and remand for a new trial free from the unavoidable
prejudice caused by the irrelevant evidence that appellant had
on an earlier occasion failed to appear for trial.
Babbs, 499 A.2d at 1114.
- 10 -
J-S77034-14
Nevertheless, this Court has observed that a trial court could properly
instruct a jury on consciousness of guilt under circumstances wherein a
defendant’s failure to appear is accompanied by evidence of flight or
concealment. For example, in Commonwealth v. Carter, 597 A.2d 1156(Pa. Super. 1991), this Court distinguished Babbs, explaining that in
Carter,
[t]he Commonwealth’s evidence was not limited merely to
appellant’s failure to appear when the case was called for trial.
Rather, the Commonwealth’s evidence was that appellant had
failed to appear for a scheduled trial date on July 5, 1978, that a
bench warrant had been issued for his arrest, and that he had
not been apprehended until July 20, 1979. On that date,
moreover, appellant attempted to avoid apprehension by giving
police a false name. This evidence was sufficient to permit an
inference that appellant had fled, and/or concealed his
whereabouts to avoid prosecution. On this basis, the trial court
could properly instruct the jury that an adverse inference could
be drawn. See and compare: Commonwealth v. Knox, 290
Pa.Super. 104, 108 n. 3, 434 A.2d 151, 153 n. 3 (1981)
(evidence of defendant’s failure to appear for trial and eventual
apprehension four months later properly received to establish
consciousness of guilt); Commonwealth v. Smith, 250
Pa.Super. 460, 467-468, 378 A.2d 1239, 1243 (1977)
(defendant’s flight from jurisdiction after posting bond was
properly received as evidence of consciousness of guilt);
Commonwealth v. Myers, 131 Pa.Super. 258, 264-265, 200 A.
143, 146 (1938) (evidence of defendant’s failure to appear for
trial, issuance of bench warrant for his arrest, efforts of police to
locate him and his apprehension approximately six months later
was properly received as evidence of consciousness of guilt;
“flight” includes not only leaving the jurisdiction, but also any
concealment to avoid arrest or prosecution).
Carter, 597 A.2d at 1160-61.
Here, we discern no error or abuse of discretion in the trial court’s
decision to instruct the jury on flight/consciousness of guilt. The evidence
- 11 -
J-S77034-14
relevant to this issue was read to the jury in the form of the following
stipulation:
On October 18, 2012, the defendant, Teron Utsey, was on
bail for the current charges. A condition of bail was that he
remain under house arrest. An individual under house arrest
must wear a GPS monitoring device.
In March of 2013 it was determined that the GPS ankle
bracelet had been removed from the defendant’s ankle. In
September 2013 the defendant was apprehended in New York.
N.T., 1/23/2014, at 41.
The court’s instruction to the jury as it pertained to
flight/consciousness of guilt was as follows:
You heard evidence by way of the stipulation that the
defendant fled to avoid prosecution of this case. Generally
speaking, when a crime has been committed and a person is
charged with that offense, and flees the jurisdiction, such flight
is a circumstance tending to prove that the person is conscious
of guilt. Such flight or concealment does not show
consciousness of guilt in every case. A person may flee for some
other motive, and may do so even though innocent.
Whether the evidence of flight or concealment in this case
should be looked at as tending to prove guilt depends upon the
facts and circumstances of this case, and especially upon the
motives that may have prompted the flight or concealment. You
may not find a defendant guilty solely on the basis of evidence of
flight.
N.T., 1/23/2014, at 58.
The above stipulation established that Appellant was aware of the
charges against him and was restricted to house arrest while awaiting trial.
Moreover, the stipulation demonstrated that Appellant subsequently
removed his GPS monitoring device and was apprehended outside of the
- 12 -
J-S77034-14
jurisdiction several months later. Based on the evidence of record, the trial
court properly charged the jury on flight/consciousness of guilt.
Because none of Appellant’s issues warrants relief, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
- 13 -