Com. v. Harper, A. ( 2019 )

J-A14031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON HARPER, :
:
Appellant : No. 918 WDA 2018
Appeal from the Judgment of Sentence Entered May 24, 2018
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011623-2017
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 30, 2019
Aaron Harper (“Harper”) appeals from the judgment of sentence entered
following his conviction of theft by unlawful taking and person not to possess
a firearm.1 We affirm.
In its Opinion, the trial court summarized the procedural history and
facts underlying the instant appeal, which we adopt as though fully restated
herein. See Trial Court Opinion, 12/6/18, at 1-2 (procedural history), 3-4
(factual history).
Harper presents the following claim for our review:
Whether the evidence is insufficient to support [] Harper’s
conviction[s,] when [] Harper was not identified as the perpetrator
of the crimes charged beyond a reasonable doubt, or, in the
alternative, when the Commonwealth failed to prove that any
firearm depicted in the surveillance video belonged to the
complainant in this case?
____________________________________________
1 18 Pa.C.S.A. §§ 3921(a), 6105(a)(1).
J-A14031-19
Brief for Appellant at 5.
Harper claims that the evidence is not sufficient to sustain his
convictions. Id. at 11. Specifically, Harper challenges the identification of
him as the perpetrator of the offenses. Id. at 15. According to Harper, “[t]he
Commonwealth presented only one witness to the theft: the complainant,
[Justin] Hoover [(“Hoover”)].” Id. Harper posits that Hoover “had little
opportunity to view the perpetrator of the theft[,] at the time it occurred.”
Id. Harper asserts that Hoover did not see the perpetrator until after the
perpetrator was fleeing from the scene. Id. at 16. Harper directs our
attention to discrepancies between Hoover’s testimony at the preliminary
hearing and at trial, arguing that Hoover’s identification was too unreliable to
sustain Harper’s conviction. Id. Harper further argues that Hoover’s prior
identification of Harper as his assailant, at the preliminary hearing, was
inaccurate, “calling into question the reliability of [Hoover’s] identification at
the scene and at trial.” Id. at 17. Harper points out that, at the preliminary
hearing, Hoover testified that his assailant did not wear flip-flops, but at trial,
he claimed that the assailant wore flip-flops, and that Hoover became
combative when challenged about the discrepancy. Id. Harper further argues
that he has no “highly identifiable” characteristics, and that “myriads of
people” could fit Hoover’s description of his assailant as a “black male wearing
a blue shirt.” Id.
-2-
J-A14031-19
Harper challenges the sufficiency of the evidence underlying his
convictions. In reviewing a challenge to the sufficiency of the evidence,
[t]he standard we apply … 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. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013) (citation
omitted). “This standard of deference is not altered in cases involving a bench
trial, because the province of a trial judge sitting without a jury is to do what
a jury is required to do.” Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa.
Super. 2008) (internal quotation marks and citation omitted).
Section 3921(a) of the Crimes Code provides that “[a] person is guilty
of theft if he unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.” 18 Pa.C.S.A.
§ 3921(a).
Section 6105(a)(1) provides as follows:
-3-
J-A14031-19
A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S.A. § 6105(a)(1).
In its Opinion, the trial court summarized the evidence in a light most
favorable to the Commonwealth, as verdict winner, and concluded that it is
sufficient to establish the identity of Harper as the perpetrator. See Trial
Court Opinion, 12/6/18, at 3-4. We agree with and adopt the reasoning of
the trial court, as set forth in its Opinion, see id., with the following
addendum.
Harper compares the evidence in this case to cases in which
Pennsylvania courts have concluded that the evidence was not sufficient to
establish the identity of the perpetrator. See Brief for Appellant at 12
(directing this Court’s attention to Commonwealth v. Crews, 260 A.2d 771(Pa. 1970), and Commonwealth v. Wiley, 432 A.2d 220 (Pa. Super. 1981)).
Harper’s reliance on these cases is misplaced.
In Crews, two black males were seen entering a cab; the cab driver
was robbed and beaten, and two black men were seen fleeing the scene.
Crews, 260 A.2d at 772.
A witness, Mrs. Schorr, who observed the two men fleeing from
the cab, testified that the taller, lighter[-]complexioned one was
wearing a gold-colored sweater, while the shorter, darker one was
wearing a black leather trench coat. When [Crews’s co-
defendant] was arrested, he was wearing a black leather coat[,]
-4-
J-A14031-19
which Mrs. Schorr identified at trial as being the coat she saw. A
gold[-]colored sweater was found in Crews’[s] home. Mrs. Schorr
could not positively say that it was the same sweater[,] which the
taller felon was wearing, but did indicate that the color appeared
to be the same.
Id. The Commonwealth additionally presented testimony that Crews and his
co-defendant were seen together 1½ hours before the crime. Id. Our
Supreme Court held that the evidence was insufficient to sustain Crews’s
conviction of murder:
As stated above, the Commonwealth’s sole identification evidence
was based on similar height and coloration, plus the clothing. In
light of the myriads of people who fit the height and coloration
description, and in light of the commonness of a gold sweater and
a black trench coat, the evidence failed to point with sufficient
certitude to Crews as the perpetrator of the crime. The jury was
forced to guess whether it was Crews or another light-
complexioned Negro male wearing a gold sweater who committed
the crime. Our system recoils at sending a man to prison for the
rest of his life on a guess….
Id.
In Wiley, a witness stated that he had identified the defendant because
“it looked like” the perpetrator. Wiley, 432 A.2d at 221. The witness, when
asked on cross-examination, “[H]ow positive are you in your identification?”
responded, “Not too sure[,]” and later stated that he was “50 percent” unsure
of his identification of the defendant, and then, “[i]t’s somewhere—[i]t’s about
70 percent” certain. Id. at 222-23. No such equivocation exists in the instant
case.
At trial, the victim, Hoover, stated that on August 21, 2017, at around
3:00 p.m., he stopped near Second Avenue and Winston Street, in Hazelwood,
-5-
J-A14031-19
Pennsylvania. See N.T., 5/24/18, at 8-9. Hoover testified that he removed
his holster, with a firearm inside of it, and placed it on the wall in front of him,
in order to adjust his basketball shorts. Id. at 9-10. According to Hoover, he
heard someone running behind him, turned, and saw Harper running away
with Hoover’s firearm. Id. at 10-11. Hoover chased Harper “up to the point
where I heard him rack a bullet into the chamber[,] and I fell back and called
the police.” Id. at 12.
Hoover’s identification was not uncertain or equivocal. The trial court,
as fact-finder, was free to resolve any inconsistencies or discrepancies in the
testimony in either party’s favor. See generally Commonwealth v.
Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (explaining that “[t]he
Commonwealth may sustain its burden of proof by means of wholly
circumstantial evidence, and the [fact-finder], which passes upon the weight
and credibility of each witness’s testimony, is free to believe all, part, or none
of the evidence”). Consequently, we cannot grant Harper relief on this claim.
Harper also argues that, “the fact that [he] was running on the
surveillance video, and that he ran when [a police officer] initially attempted
to stop him,” is not sufficient to sustain his conviction of person not to possess
a firearm. Brief for Appellant at 20. Harper asserts that the 11-second
surveillance video does not clearly depict him as carrying a firearm. Id. At
best, Harper asserts, the video established that he was running with a black
object in his hand. Id. at 21.
-6-
J-A14031-19
Harper’s challenge to the video surveillance footage does not afford him
relief. Hoover testified that Harper stole his firearm from the wall and carried
the weapon as he fled the scene. N.T., 5/24/18, at 10-11. This evidence,
which the trial court found to be credible, was sufficient to establish that
Harper, a felon, possessed a firearm.
Counsel’s Application to Withdraw is granted.2 Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2019
____________________________________________
2 Appellate counsel has filed an Application to Withdraw, as she has resigned
from the Allegheny County Office of the Public Defender.
-7-
Circulated 08/12/2019 02:18 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, CC NO.: 2017-011623
Superior Court No: 918 WDA 2018
v.
AARON HARPER,
Defendant.
OPINION
FLAHERTY, J. December 6, 2018
Aaron Harper ("Defendant") appeals from the Judgment of Sentence imposed by this
Court on May 24, 2018.
On August 21, 2017, Defendant was charged with the following offenses for an incident
that occurred on that date:
• Count One: Receiving Stolen Property (18 Pa.CS.A. §3925(a), a felony of the
first degree)
• Count Two: Theft by Unlawful Taking-Movable Property (18 Pa.CS.A.
§3921(a), a felony of the second degree)
• Count Three: Person not to Possess a Firearm (18 Pa.CS.A. §6105(a)(l), a felony
of the second degree)
• Count Four: Carrying a Firearm without a License (18 Pa.CS.A. §6106(a)(l), a
felony of the third degree)
• Count Five: Escape (18 Pa.CS.A. §5121(a), a misdemeanor of the second degree)
The matter proceeded to a nonjury trial on May 24, 2018. Prior to the start of trial, the
Commonwealth moved to amend Count 1, receiving stolen property, from a felony of the first
degree to a felony of the second degree, and Count 3, person not to possess a firearm, from a
felony of the second degree to a misdemeanor of the first degree. This Court accepted the
1
amendments and amended the information. At the conclusion of the trial, Defendant was found
guilty of theft by unlawful taking and person not to possess a firearm and not guilty at the
remaining counts. Defendant waived his right to a pre-sentence report and the Defendant was
sentenced to serve twenty-four (24) months of probation for theft by unlawful taking.
Defendant timely filed his Notice of Appeal on June 22, 2018. Defendant was directed to
file his concise statement of matters complained of on appeal via order dated June 26, 2018.
Defendant's concise statement was filed on September 24, 2018, wherein he raised the following
issues:
1. The evidence was insufficient to convict Defendant of theft by unlawful taking and
person not to possess a firearm because the Commonwealth did not prove, beyond a
reasonable doubt, that Defendant was the individual who unlawfully took the
complainant's firearm.
2. The evidence was also insufficient to convict Defendant of theft by unlawful taking
because the Commonwealth did not prove beyond a reasonable doubt that the firearm
Defendant carried did, in fact, belong to the complainant in this case. To the extent
that there was proof that Defendant carried a firearm, there was insufficient evidence
that it was the stolen firearm in question.
3. Defendant is entitled to a new trial because this Honorable Court erred in allowing
Officer Carl Yeaney ("Officer Yeaney") to present inadmissible opinion testimony as
to the contents of a surveillance video. Officer Yeaney testified, based on his training
and experience, that he believed the surveillance video showed Defendant holding a
firearm. Officer Yeaney had not been qualified as an expert, and his opinion
testimony did not fall within the permissible bounds of lay opinion testimony under
the Rules of Evidence. Admission of this testimony was reversible error.
4. Defendant is entitled to a new trial because this Honorable Court erred in allowing
Officer Yeaney to testify to the contents of the surveillance video, in violation of the
Best Evidence Rule.
2
The facts as found by this Court at trial are as follows: Justin Hoover ("Hoover") credibly
testified that he was on Winston Avenue and Second Avenue in Hazelwood walking to see his
grandfather on August 21, 2017. (T.T. pp. 8-9). He was walking toward St. Stephen's Church
around 3:00 p.m. (T.T. p. 9). On that day he was carrying a firearm and wearing basketball
shorts. (T.T. p. 10). Around that time, Hoover had to adjust his basketball shorts, so he removed
his firearm from his person and set it down on a wall in front of him. (T.T. p. 10). At that point,
he heard someone run up behind him, grab his firearm off of the wall, and take off running down
the street. (T.T. pp. 10-11). Hoover identified the individual who took his firearm from the wall
as Defendant. (T.T. p. 11). Hoover had never met Defendant before this incident. (T.T. p. 12).
He chased Defendant on foot until he heard Defendant rack a bullet into the chamber of the
firearm. (T.T. p. 12). At this point, Hoover stopped chasing Defendant and contacted the police.
(T.T. p. 12). Hoover then observed Defendant continue running down the street toward
Halbleib's Auto Body. (T.T. p. 12) Hoover further testified that the firearm was operational, as
he had fired it approximately one week before it was stolen. (T.T. p. 11).
Officer Yeaney, a police officer for the City of Pittsburgh Police Department and
assigned to Zone 4, testified that he was on general patrol on August 21, 2017 when he received
a call at approximately 3:15 p.m. (T.T. p. 18). He responded to the area of Second Avenue and
Winston Street for a theft of a firearm. (T.T. p. 18). Upon arrival, he made contact with the
complainant, Justin Hoover, who stated that a "black male wearing a blue shirt" had stolen his
firearm and fled on foot toward Halbeib's Auto Body. (T.T. p. 18). Officer Yeaney notified
other units in the area of the description and began to patrol the area. (T.T. p. 18). He shortly
noticed a male fitting that description walking a few blocks ahead of him. (T.T. p. 19). Officer
Yeaney approached him, and called out over the radio attempting to initiate a stop. (T.T. p. 19).
3
When Defendant saw the activated police lights, he began to run away. (T.T. p. 19). Officer
Yeaney pursued him, had other officers set a perimeter, and ultimately located Defendant in
between buildings on the 5100 block of West Langhorn Street. (T.T. p. 19). There was no
firearm recovered from Defendant or at any point during this investigation. (T.T. p. 25).
Video surveillance from Halbeib's Auto Body from August 21, 2017 at 3:08 p.m. was
secured by the Pittsburgh Police and played at trial. (T.T. pp. 20-22). The video captured
images from the area around Halbeib's Auto Body, and depicted Defendant running down the
same route as testified to by Hoover and Officer Yeaney. (T.T. p. 20-22).
Defendant's first issue on appeal is that the Commonwealth failed to prove beyond a
reasonable doubt that Defendant was the individual who unlawfully took Hoover's firearm. At
trial in this matter, Hoover identified Defendant as the individual who took his firearm off of the
wall without authorization or permission to do so. (T.T. p. 11). This Court found Hoover's
testimony to be credible in all respects. In-court identification of the perpetrator of a crime is
sufficient evidence to prove that a particular defendant committed the offense charged. See,
Commonwealth v. Jarecki, 415 Pa.Super. 286, 290 (1992). As such, there was sufficient
evidence to prove Defendant was the individual who committed these offenses.
Defendant's second issue on appeal is that the evidence was insufficient to convict
Defendant of theft by unlawful taking because the Commonwealth did not prove beyond a
reasonable doubt that the firearm Defendant carried belonged to Hoover. A person commits the
offense of theft by unlawful taking or disposition of movable property when he "unlawfully
takes ... movable property of another with intent to deprive him thereof." 18 Pa.C.S.A. §392l(a).
Hoover testified that he had lawfully purchased the Bersa 9 millimeter pistol he was carrying on
4
August 21, 2017 approximately eight months prior to this incident. (T.T. p. 11). He further
testified that he had the paperwork establishing his ownership of the firearm with him in court,
although it was not admitted into evidence. (T.T. p. 13). Hoover's testimony that he lawfully
purchased the firearm is sufficient evidence to establish beyond a reasonable doubt that he was
the lawful owner and possessor of the firearm that was taken from him on August 21, 2017.
Defendant's third and fourth issues on appeal involve Officer Yeaney's testimony
concerning the surveillance video that was admitted into evidence. Defendant alleges that
Officer Yeaney's testimony was improper lay opinion testimony when he testified, "I would state
that based on my training and experience, having handled firearms, I can clearly state that I
believe what he is handling in his pants is a firearm." (T.T. p. 24). Further, Defendant alleges
that Officer Yeaney's testimony regarding his observations on the video tape constitute a
violation of the best evidence rule.
Initially, this Court notes that the best evidence rule is not violated in this matter, as it
does not apply. The best evidence rule is set forth in Pennsylvania Rule of Evidence 1002,
which states, "an original writing, recording, or photograph is required in order to prove its
content unless these rules, other rules prescribed by the Supreme Court, or a statute provides
otherwise." Pa.R.E. 1002. The best evidence rule, while it was initially intended solely for
writings, has been extended through case law to include video tape footage. Commonwealth v.
Green, 162 A.3d 509, 517-18 (Pa. Super. 2017). However, the rule is designed to prevent
testimony about a video without actually admitting the original video footage. Id. (emphasis
added). In this instance, the video footage was admitted into evidence and reviewed prior to
Officer Yeaney's testimony. As such, the best evidence rule does not apply.
5
Officer Yeaney's testimony concerning his personal observations does not violate of the
rules of evidence. The Pennsylvania Superior Court addressed the same issue in Commonwealth
v. Cole, 135 A.3d 191 (Pa. Super. 2016). In Cole, a City of Pittsburgh homicide detective
narrated surveillance video footage during his testimony. Commonwealth v. Cole, 135, A.3d at
194. The Superior Court found this to be permissible, as the video was simultaneously being
played to the jury, who could review it and make their own determination as to the contents
thereof. Id. The video was presented in the same fashion in this matter. As such, Officer
Yeaney's testimony is permissible.
For the foregoing reasons, this Court's May 24, 2018 Order of Sentence should be
affirmed.
BY THE COURT,
%�.�£.ff
Court of Common Pleas
6