Com. v. Showers, M. ( 2017 )

J-A24025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL SHOWERS
Appellant No. 3431 EDA 2015
Appeal from the Judgment of Sentence November 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012440-2013
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 18, 2017
Michael Showers appeals from the judgment of sentence imposed on
November 2, 2015, in the Court of Common Pleas of Philadelphia County.
On April 16, 2015, a jury convicted Showers of robbery.1 The court
sentenced him to a term of 25 to 50 years’ imprisonment as a third-strike
offender.2 On appeal, Showers raises weight and sufficiency claims, as well
as the court’s imposition of the recidivist statute. For the reasons below, we
affirm Showers’s judgment of sentence.
The trial court set forth the facts as follows:
____________________________________________
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
See 42 Pa.C.S. § 9714 (recidivism statute relating to sentences for second
and subsequent offenses).
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The Commonwealth called the complainant, Jigna Patel (“Patel”)
as its first witness. Patel testified that she worked as a manager
for Subway Restaurant at 330 Oregon Avenue and was working
there on February 2, 2013. Patel further testified that, at around
6:00 p.m. on that day, a man wearing a black scarf over his face
came into the store and asked for cookies. Patel stated that, as
she went towards the cookie rack next to her cash register, the
man produced a gun and demanded $10 and $20 bills in her
register. Patel stated that she gave the man the money and he
told her to open the back door of the property. Patel testified
that she told the man that there was not a back door to the
property so the man ran out the front door.
Patel testified that the man was wearing a white and gray
hooded sweatshirt, blue jeans, and black sneakers. Patel further
testified that, as the man was leaving the Subway, he bumped
into a regular customer who was entering the store at the same
time. Patel stated that the customer called the police and she
talked to police roughly 20 minutes after the robbery occurred.
Patel further stated that she could not see the gun the man was
carrying nor could she describe what it looked like, but she saw
the front of the gun. Patel described the robber as a white male,
approximately 5’9” and 180 pounds. Patel further testified that
the man was wearing a glove on his right hand only. Patel
stated that she spoke with two female police officers at the
scene, then talked to detectives and gave a written statement
shortly thereafter. Patel further stated that she told detectives
that she would not be able to recognize the person who robbed
her because he had a black scarf wrapped around his face. Patel
testified that the detectives showed her pictures of people, but
she was unable to identify anyone.
The Commonwealth called Officer Lynne Zirilli (“Zirilli”) as
its next witness. Zirilli testified she had been a police officer in
the 3rd District for 18 years and that, on February 2, 2013, she
responded to a radio call for a robbery in progress at a Subway
on 330 Oregon Avenue. Zirilli further testified that she and her
partner received the call at approximately 6:07 p.m. and came
into contact with Patel when they arrived at the scene. Zirilli
stated that Patel seemed to be in shock and told them that she
was robbed. Zirilli further stated Patel described the robber as a
white male, approximately 5’8” tall with a heavy build and
wearing a white and gray hooded sweatshirt with a black mask,
dark colored jeans and latex gloves. Zirilli testified that she
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relayed the description over police radio so other officers could
check the area but nobody was stopped.
The Commonwealth called Detective Neal Aitken (“Aitken”)
as its next witness. Aitken testified that he was assigned to the
South Detective Division and had been a detective since 1990.
Aitken further testified that, on or about February 14 or 15,
2013, he and Detective Michael McKenna (“McKenna”) went to
the scene at 330 Oregon Avenue and recovered video from a
custom car business in the area called Eargasm. Aitken stated
that Eargasm was located in the building next to where the
Subway was located. As the Commonwealth played the video
recovered from Eargasm, Aitken testified that he saw a man run
across the screen, that the image was significant as it was taken
at the time immediately following the robbery and the person
was wearing the same clothing as the robber. Aitken also stated
that the person on the video ran west on the sidewalk adjacent
to the Subway and then made a left turn and ran south on the
2700 block of South Randolph Street.
The Commonwealth called McKenna as its next witness.
McKenna testified that he worked for the South Detective
Division and that he investigated the robbery at 330 Oregon
Avenue. The Commonwealth then played a surveillance video
obtained from the Subway. McKenna testified that the unique
two-toned sweatshirt the robber was wearing and the fact that
the robber was wearing a single black glove on his right hand
stood out to him as he watched the video. McKenna further
testified that the sweater was an off-white or gray color with
black and white stripes on the sleeves and across the chest and
waist. The Commonwealth then played the surveillance video
obtained from Eargasm. McKenna testified that he observed a
person run southwest onto the 2700 block of Randolph Street
and that the person had a limp or a hitch in his gait as though he
was favoring his right foot.
McKenna also testified that, near the beginning of the
investigation, the police received an anonymous tip which led
them to focus the investigation on [Showers]. McKenna further
testified that, based upon the tip and his investigation to that
point, he obtained a search warrant for [Showers’s] house at
2732 Randolph Street on February 14, 2013 but did not recover
any evidence from the house. McKenna stated that, after he
executed the search warrant, he and Aitken returned to the
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Subway to survey the area. McKenna further stated that Patel
had mentioned that the robber wanted to go out the back door
of the Subway and he wanted to see why the offender would
have wanted to leave through the back door. McKenna testified
that the back door led to a rear alleyway which ran between a
shopping mall and the east side of Randolph Street. He
theorized that the robber could use the alley to access the 2700
block of Randolph Street, at which time there would only be a
short walk to [Showers’s] residence at 2732 South Randolph
Street.
McKenna testified that, on April 23, 2013, he was provided
with a photograph from Whitman Check Cashing, located on the
southwest corner of Randolph Street and Oregon Avenue, which
showed [Showers] wearing a sweatshirt that looked identical to
the one worn by the robber. McKenna further testified that he
found a public Facebook profile under [Showers’s] name which
had a photograph of [Showers] wearing a sweatshirt that was
identical to the one worn by the suspect in the video. McKenna
stated that, in the photograph taken from Whitman Check
Cashing, [Showers] appeared to be resting the left side of his
body on a crutch and that, when he had a chance to talk with
[Showers], he noticed that [Showers] walked with a noticeable
limp to his right foot. McKenna further stated that [Showers]
told him that he had been in an auto accident and had pins in his
right ankle. McKenna testified that, from other photos of
[Showers], he observed that [Showers] had a small tattoo on his
right hand between his thumb and first finger but did not have
any tattoos on his left hand. McKenna further testified that he
showed Patel and Joseph Furia (“Furia”) a photo array of eight
individuals including [Showers] but they were both unable to
identify [Showers]. McKenna stated that, when he interacted
with [Showers], he noticed that [Showers] was approximately
5’9” tall and 225 pounds, which was consistent with the way
Patel and Furia described the offender in the robbery.
The Commonwealth then read a stipulation, by and
between counsel, that Commonwealth Exhibit C-13 was a fair
and accurate photo of a tattoo on [Showers’s] right hand and
that the photo was taken on November 12, 2012. There was a
further stipulation, by and between counsel, that Commonwealth
Exhibit C-11 was provided by Whitman Check Cashing and that if
Michael Angelo were called to testify, he would testify that he
was the teller on November 13, 2012 when the photo was taken
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by their surveillance, that the person who cashed a check during
that transaction was [Showers], who cashed a check made out
to him drawn on a check belonging to Norma Showers with the
address of 2732 South Randolph Street. He would further testify
that the photo was a fair and accurate photo of the transaction
he witnessed on November 13, 2012.
The Commonwealth called Furia as its next witness. Furia
testified that he and his son went to the Subway at 330 Oregon
Avenue at around 6:00 p.m. on February 2, 2013. Furia further
testified that, as he walked through the door, a man wearing a
scarf bumped into him and said, “I’m sorry” and “it’s cold out
there.” Furia stated that he then walked up to the counter and
the girl who was usually there was peeking out from the back of
the store. Furia further stated that the man started running out
of the door with a noticeable limp and ran towards Randolph
Street. Furia testified that the woman told him that the man had
taken all of her twenty dollar bills and so he went to look for the
man but he was gone. Furia testified that he went next door and
called the police for her as she was too scared to call the police
on her own.
Furia testified that they rode around the neighborhood with
the police to see if they could find the man, but they were
unable to do so. Furia further testified that McKenna later
contacted him and had him look at a group of photographs, but
he was unable to identify anyone that he had seen that night.
Furia stated that the robber had the scarf over his face and his
hat down so he could not see what he looked like. Furia further
stated that the man had his hands in his pockets as he left. The
Commonwealth then played the video surveillance obtained from
the Subway restaurant. Furia testified that he recognized
himself and the man he bumped into on the video. Furia further
testified that he went straight to the front counter after he
bumped into the man and when he turned around the man
started running with a limp. After Furia testified, the
Commonwealth rested.
[Showers] stipulated, by and between counsel, that on
May 21, 2012, [Showers] had surgery on his right ankle in which
several pins were placed and that surgery occurred at Jefferson
Hospital. After the stipulation, the defense rested.
Trial Court Opinion, 1/28/2016, at 2-7 (record citations omitted).
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On May 30, 2013, the police arrested Showers and charged him with
robbery and possession of an instrument of crime (“PIC”). A two-day jury
trial began on April 15, 2015. The next day, the jury convicted Showers of
robbery and acquitted him of PIC. On November 2, 2015, the trial court
sentenced Showers to a term of 25 to 50 years’ imprisonment on the third-
strike robbery charge. This appeal followed.3
In Showers’s first argument, he claims the verdict was against the
weight and sufficiency of the evidence. Showers’s Brief at 12. Specifically,
Showers states, “The evidence, and the reasonable inferences drawn from
that evidence, do not prove beyond a reasonable doubt that [he] is guilty of
the robbery[.]” Id. at 13. He notes neither Patel nor Furia could positively
identify him as the robber. Id. Moreover, he asserts:
The Commonwealth based most of its case on mere speculation
since [Showers] owned a sweatshirt that was similar to the one
worn by the offender, and detectives “theorized” that [Showers]
planned the robbery and wished to leave out of the back door of
the restaurant due to the proximately of the restaurant to his
home. Sweatshirts are mass produced, so identification by
detectives based on an article of clothing is insufficient to prove
beyond a reasonable doubt that [Showers] committed the crime.
To say that this particular sweatshirt was considerably unique in
that it is not often that someone would come across another
person wearing something similar is farfetched.
____________________________________________
3
On December 1, 2015, the trial court ordered Showers to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Showers filed a concise statement on December 18, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 28, 2016.
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Id. Additionally, Showers states it was not reasonable for the
Commonwealth to assume Showers wore a black glove, as seen on the store
video, to cover up a small tattoo on his right hand, because Patel testified
the perpetrator wore a latex glove on the one hand. Id. Lastly, Showers
points out that a search warrant was issued for his home and no evidence
was recovered. Id.
As a prefatory matter, we note that in framing his issue as a challenge
to the weight and sufficiency of the evidence, Showers conflates two unique
claims into one argument. As the Commonwealth notes, “Challenges to the
sufficiency of the evidence and the weight of the evidence are distinct
inquiries that must be separately briefed and analyzed; an argument as to
one may not simply incorporate the argument as to the other.”
Commonwealth’s Brief at 10, citing Commonwealth v. Birdseye, 637 A.2d
1036, 1039-1040 (Pa. Super. 1994), aff’d, 670 A.2d 1124 (Pa. 1996), cert.
denied, 518 U.S. 1019 (1996). Furthermore, Showers never preserved his
weight-of-the-evidence claim with the trial court either orally at any time
before sentencing, by written motion, or in a post-sentence motion, and he
did not include the issue in his concise statement. See Pa.Crim.P.
607(A)(1)-(3); see also Pa.R.A.P. 1925(b). Therefore, Showers has waived
his weight claim. Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.
Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013) (“Failure to properly
preserve the claim will result in waiver, even if the trial court addresses the
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issue in its opinion.”); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).
With respect to Showers’s argument in terms of a sufficiency
challenge, we are guided by 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 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.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted), appeal denied, 112 A.3d 651 (Pa. 2015).
Showers’s argument focuses largely on an allegation that the evidence
failed to identify him as the robber in question. To this extent, we are also
guided by the following:
“[E]vidence of identification need not be positive and certain to
sustain a conviction.” Although common items of clothing and
general physical characteristics are usually insufficient to support
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a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, “any indefiniteness
and uncertainty in the identification testimony goes to its
weight.”
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(internal citations omitted), appeal denied, 54 A.3d 348 (Pa. 2012).
Robbery is defined, in relevant part, as follows:
(1) A person is guilty of robbery if, in the course of committing
a theft, he:
…
(ii) threatens another with or intentionally puts him in
fear of immediate serious bodily injury[.]
18 Pa.C.S. § 3701(a)(1)(ii). “An act shall be deemed ‘in the course of
committing a theft’ if it occurs in an attempt to commit theft or in flight after
the attempt or commission.” 18 Pa.C.S. § 3701(a)(2). Moreover,
“[t]he evidence is sufficient to convict a defendant of robbery
under this section if the evidence demonstrates aggressive
actions that threatened the victim’s safety. The court must
focus on the nature of the threat posed by an assailant and
whether he reasonably placed a victim in fear of immediate
serious bodily injury. Additionally, this Court has held that the
threat need not be verbal.” Commonwealth v. Jannett, 58
A.3d 818, 822 (Pa. Super. 2012) (citations and internal
quotations omitted). “Serious bodily injury” is defined as
“[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 18
Pa.C.S.A. § 2301. “When determining whether a victim has
been placed in fear of serious bodily injury, this Court uses an
objective standard; therefore, [the victim’s] subjective state of
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mind during the robbery is not dispositive.” Commonwealth v.
Kubis, 978 A.2d 391, 398 (Pa. Super. 2009) (concluding that
the nature of appellant’s threat to stab the victim was such that
a reasonable person in the victim’s position would fear for his life
or safety even though no knife was physically produced during
robbery).
Commonwealth v. Valentine, 101 A.3d 801, 807 (Pa. Super. 2014),
appeal denied, 124 A.3d 309 (Pa. 2015).
Here, the trial court found the following:
In the case at bar, the evidence presented at trial was
sufficient to find [Showers] guilty of robbery. Patel testified that
a man wearing a white and gray hooded sweatshirt and a glove
on his right hand came to her Subway Restaurant on 330 Oregon
Avenue at around 6:00 p.m. on February 2, 2013, pointed a gun
at her, and demanded the $10 and $20 bills from her cash
register. Patel further testified that she gave the man the
money and then he left through the front door. Patel stated that
the man was approximately 5’9” tall and weighed approximately
180 pounds. Furia testified that, as he entered the Subway with
his son at around 6:00 p.m., he bumped into a man leaving
through the front door. Furia further testified that the man then
ran out the door with a noticeable limp and Patel told him that
the man had taken her $20 bills. Aitken testified he recovered
surveillance footage from an adjacent business which showed a
man wearing the same type of clothing as the robber [who had]
run onto 2700 South Randolph Street. McKenna testified that he
obtained photographs of [Showers] from Whitman Check
Cashing and [Showers’s] public Facebook profile which showed
[Showers] wearing the same unique gray and white hooded
sweatshirt worn by the robber. McKenna further testified that he
noticed on the surveillance footage that the robber walked with a
noticeable limp in his right foot and that [Showers] had a
noticeable limp in his right foot due to an auto accident.
McKenna stated that the back door of the Subway property led
to the 2700 block of South Randolph Street, which was only a
short walk to [Showers’s] residence at 2732 South Randolph
Street. McKenna further stated that [Showers] had a small
tattoo on his right hand and that he matched the height and
weight of the description given by Patel and Furia. Thus, when
afforded all favorable inferences from this evidence, the
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Commonwealth proved that [Showers] pointed a firearm at Patel
in the course of taking $10 and $20 bills from her and that he
placed her in mortal fear of deadly injury when he did so. Thus,
the evidence presented at trial was sufficient to find [Showers]
guilty of robbery.
Trial Court Opinion, 1/28/2016, at 9-10.
Notwithstanding the lack of any positive identification by Patel or
Furia, our review of the entire record, in the light most favorable to the
Commonwealth as the verdict winner, and drawing all reasonable inferences
therefrom, confirms our accord with the trial court’s decision. The
Commonwealth presented sufficient circumstantial evidence that
demonstrated Showers was the perpetrator, and he placed Patel in fear of
serious bodily injury when he pointed a gun and asked for money, including:
(1) the video surveillance footage; (2) the pictures of Showers from the
Whitman Check Cashing and Facebook page wearing the same clothing as
the robber; (3) the visible limp on the right foot that both Showers and the
robber had; and (4) the location of the Subway in relation to Showers’s
residence. We emphasize the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. See
Melvin, supra. Therefore, even if Showers’s sweatshirt was “mass
produced” as he alleges, it still is identical to the one the robber was
wearing. Furthermore, Showers ignores the distinct fact that he and the
robber were both observed limping on the right foot side. Lastly, we note
“any indefiniteness and uncertainty in the identification testimony goes to its
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weight,” Orr, 38 A.3d at 874, which is an argument that Showers has
waived for failure to properly preserve.4 Accordingly, Showers’s sufficiency
claim fails.
In his final argument, Showers complains the trial court erred when it
sentenced him to a third-strike offense because of the insufficiency of the
evidence. Showers’s Brief at 14. He merely states, “It cannot be proven
beyond a reasonable doubt that [he] was responsible for this robbery, so the
sentence should be vacated and a new trial granted.” Id.
Because we find there was sufficient evidence to support Showers’s
robbery conviction as discussed supra, his argument fails. Nevertheless, it
also bears mentioning the following:
The issue of the proper interpretation of the mandatory
minimum sentencing provisions of 42 Pa.C.S.A. § 9714, the
statute at issue in this case, has been held to implicate the
legality of the sentence imposed. Commonwealth v.
Ausberry, 891 A.2d 752, 754 (Pa. Super. 2006) (citation
omitted). A “defendant or the Commonwealth may appeal as of
right the legality of the sentence.” Ausberry, 891 A.2d at 754;
see also 42 Pa.C.S.A. § 9781(a).
The scope and standard of review applied to determine the
legality of a sentence are well established. If no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. Commonwealth v. Johnson,
2006 Pa. Super. 265, ¶ 15, 910 A.2d 60, 66, 2006 WL 2729492.
____________________________________________
4
Additionally, to the extent Showers argues the color of the glove that the
robber was wearing varied with respect to Patel’s testimony and the store
video, and no evidence of the robbery was found during a search of his
home, we find these assertions of no consequence since there was an
abundance of other circumstantial evidence to establish he was the robber.
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An illegal sentence must be vacated. Johnson, 2006 Pa. Super.
265, at ¶ 15, 910 A.2d at 66. In evaluating a trial court’s
application of a statute, our standard of review is plenary and is
limited to determining whether the trial court committed an error
of law. Id., 2006 Pa. Super. 265 at ¶ 15, at 66.
Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa. Super.
2006).
The statute provides, in pertinent part, as follows:
§ 9714. Sentences for second and subsequent offenses
(a) MANDATORY SENTENCE.—
…
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more such
crimes of violence arising from separate criminal transactions,
the person shall be sentenced to a minimum sentence of at least
25 years of total confinement, notwithstanding any other
provision of this title or other statute to the contrary. Proof that
the offender received notice of or otherwise knew or should have
known of the penalties under this paragraph shall not be
required. Upon conviction for a third or subsequent crime of
violence the court may, if it determines that 25 years of total
confinement is insufficient to protect the public safety, sentence
the offender to life imprisonment without parole.
42 Pa.C.S. § 9714(a). Moreover,
[t]he sentencing court, prior to imposing sentence on an
offender under subsection (a), shall have a complete record of
the previous convictions of the offender, copies of which shall be
furnished to the offender. If the offender or the attorney for the
Commonwealth contests the accuracy of the record, the court
shall schedule a hearing and direct the offender and the attorney
for the Commonwealth to submit evidence regarding the
previous convictions of the offender. The court shall then
determine, by a preponderance of the evidence, the previous
convictions of the offender and, if this section is applicable, shall
impose sentence in accordance with this section.
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42 Pa.C.S. § 9714(b).
Here, the trial court found the following:
In the case at bar, this Court did not err when it sentenced
[Showers] to robbery as a third-strike. As [Showers’s] court
summary readily showed, [Showers] previously had been
convicted of two crimes of violence in Pennsylvania. On March
18, 1993, [Showers] pled guilty to robbery as a first-degree
felony at docket CP-51-CR-0934001-1992. On April 23, 2008,
[Showers] pled guilty to burglary as a first-degree felony on
docket CP-51-CR-0013390-2007. Thus, [Showers] had two prior
convictions for crimes of violence arising from separate criminal
transactions. Consequently, this Court did not err when it found
that his instant conviction for robbery as a first-degree felony
was a third-strike conviction and accordingly sentenced him to
25 to 50 years state incarceration.
Trial Court Opinion, 1/28/2016, at 13.
We agree with the court’s findings, and note Showers does not
challenge the status of his two prior convictions or his present conviction as
crimes of violence.5 Accordingly, his legality of sentence claim is unavailing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2017
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5
We note the pre-sentence investigation was not included in the certified
record; however, as stated above, Showers does not take issue with these
prior convictions.
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