Com. v. Bond, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD K. BOND :
:
Appellant : No. 1701 EDA 2018
Appeal from the Judgment of Sentence February 9, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): C.P.-51-CR-0000733-2017
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: March 25, 2020
Appellant, Bernard K. Bond, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County following his
conviction by a jury on the sole charge of criminal conspiracy (to commit
robbery).1 After a careful review, we affirm.
The relevant facts and procedural history are as follows: Following his
arrest in connection with a robbery, Appellant, who was represented by
counsel, proceeded to a jury trial. At trial, Sergeant Marcus O’Shaughnessy
testified that, on October 4, 2016, he was on duty when at approximately
10:30 a.m. he received a call for a “robbery in progress, point of gun” at the
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 903.
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Carolina Market, which is a grocery market located at 2952 Ridge Avenue.
N.T., 11/28/17, at 25-27, 33.
The officer received “flash information”2 over the Computer Aided
Dispatch indicating two black males were involved: one of the black males
was five-foot seven, wearing a blue jacket and blue jeans, while the other
black male was six-foot wearing a blue hoodie and blue pants. Id. at 33. He
further received information over the radio that the “the first black male was
armed with a black handgun and the second black male was armed with a
.357 Magnum….[The first male] was 25 to 30 years old, medium build, short
hair. The other one in his 40’s, light complexion.” Id. at 34.
Sergeant O’Shaughnessy arrived at the Carolina Market within “a few
minutes” of receiving the radio call, and he found the victim, Jay Truesdale,
standing on the corner outside of the market. Id. at 31. Mr. Truesdale, who
appeared to be very upset, explained that “the males pulled a gun on him,
took money from his out of his car, took his keys to the car, and [took] his
cell phone.” Id. at 35. He reported the men then fled westbound on Fontain
Street from 30th. Id.
Sergeant O’Shaughnessy indicated that, based on the information
provided to him, he completed an incident report describing the suspects as
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2 “[F]lash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 (Pa.Super. 1986).
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“[f]irst black male medium complexion, six-foot one, medium build, blue
jacket, blue pa[nt]s, armed with a handgun. Number 2 black male, medium
complexion, five-foot seven, blue hoodie, blue jeans.” Id. at 37.
Detective Earl Martin testified he was assigned as the lead investigator,
and he interviewed Mr. Truesdale, who was still quite upset, at the police
station shortly after the robbery occurred. N.T., 11/29/17, at 14-15. During
the interview, Mr. Truesdale identified Appellant, who was his cousin, and a
male named “Duly” as suspects. Id. at 18-19. Mr. Truesdale described “Duly”
as a “[b]lack male, tall, athletic build, 20’s, late 20’s, earlier 30’s with a tattoo
on his neck.” Id. at 22. Although the detective put the name “Duly” into the
police database, no photograph or information “popped up.” Id. The general
description provided by Mr. Truesdale as to “Duly” generated “hundreds of
thousands of photos” such that the police were unable to identify “Duly’s” true
identity. Id.
Mr. Truesdale also gave the detective a description of Appellant,
including what he was wearing at the time of the robbery, his name, his date
of birth, and his home address of 1828 South Taylor Street. Id. at 23-24.
The detective entered the information into the police database and, when
Appellant’s photograph appeared on the screen, Mr. Truesdale immediately
pointed to the photograph and said, “That’s my cousin. That’s my cousin.”
Id. Mr. Truesdale then signed and dated the photograph. Id.
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Detective Martin testified Mr. Truesdale had no hesitation identifying
Appellant as being involved in the robbery. Id. at 25-26. He also testified
Mr. Truesdale confirmed his cellular phone, $150.00 in cash, and his car keys
were taken during the robbery. Id. at 26. Moreover, Mr. Truesdale reported
Appellant was armed with a .357 revolver during the robbery. Id. at 27-28.
Detective Martin testified that, after he interviewed Mr. Truesdale, he
went to the Carolina Market on the day of the incident and seized footage from
surveillance cameras, which were located inside and outside of the market.
Id. at 48. The video footage was entered into evidence.3 Id. at 46-48.
Detective Martin testified that, on October 4, 2016, at 9:30 p.m., the
police executed a search warrant at Appellant’s residence. Id. at 32. No one
was home at the time of the search. Id. During the search of a bedroom,
the police found mail addressed to Appellant. Id. However, the police did not
discover a firearm or any of the victim’s missing items. Id. at 32-33.
Detective Martin then obtained an arrest warrant, which he attempted to serve
on Appellant at his residence on October 6, 2017, to no avail. Id. at 37-38.
Ultimately, Appellant was arrested on October 26, 2017, at 800 West Rockland
Street. Id. at 40.
Mr. Truesdale, who indicated in court that he recognized Appellant,
testified Appellant is his “family.” Id. at 61-63. Specifically, Mr. Truesdale
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3 We note the disc containing the video surveillance footage was included in
the certified record to this Court.
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explained his stepfather, who raised him since he was an infant, was
Appellant’s uncle. Id. at 61. Mr. Truesdale indicated Appellant was his step-
cousin and, prior to the instant incident, they were “pretty close.” Id. at 63.
Mr. Truesdale testified that, at one point, he gave Appellant money and took
care of him because he was his family. Id. at 64.
Regarding October 4, 2016, the day of the robbery, Mr. Truesdale
testified that, as he was driving home from work after the overnight shift, he
stopped at the Carolina Market in the morning to get a cup of coffee. Id. at
66. Mr. Truesdale explained he stopped his vehicle near the front of the
market, went inside, and saw Appellant standing by another younger man who
he knew as “Duly.” Id. at 71-72. Mr. Truesdale testified he did not stop to
talk to Appellant or “Duly” but proceeded to get a coffee. Id. at 75.
Mr. Truesdale testified he felt nervous seeing the two men together
because he and Appellant were not “seeing eye to eye” on various things at
that point in time. Id. Also, he explained he had lent $100.00 to “Duly,” and
about a week before the robbery, he saw “Duly” and asked him when he was
going to pay back the money. Id. at 74. In response, “Duly” pulled a 9
millimeter handgun on him and said, “I ain’t got it. What you’re [sic] going
to do?” Id.
Mr. Truesdale testified he did not speak to “Duly” while he was in the
Carolina Market on October 4, 2016; however, as Mr. Truesdale was waiting
for his coffee to be prepared by the man behind the counter, Appellant
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approached him and asked him for “a couple [of] dollars.” Id. at 77. Mr.
Truesdale testified he went out to his car, retrieved $5.00, came back into the
market, and gave Appellant $5.00. Id. at 81-82. He noticed Appellant and
“Duly” were “huddled” together conversing when he came back inside of the
market to give Appellant the $5.00. Id. at 82.
After Mr. Truesdale paid for his coffee, he left the store, spoke briefly to
a friend across the street, and began walking to his vehicle when he noticed
Appellant and “Duly” exiting the market together while still conversing with
each other. Id. at 84. As Mr. Truesdale approached the driver’s side door,
he saw Appellant and “Duly” approach and stand by the front passenger side
door of the vehicle. Id. at 85. Mr. Truesdale testified the following occurred:
Q. At some point do they start having words with you?
A. Yes.
Q. And do you recall what that was about?
A. My cousin actually told me, you know, You got a problem
with my young bol? Y’all need to handle it. Actually, I said to my
cousin, What do you mean I need to handle a problem with your
young bol? We’re supposed to be family and he looked at me like
I was crazy.
Q. Okay. And at some point do you eventually get into your
vehicle?
A. Yes.
Q. When you get into your vehicle, did something happen
to you while you’re inside of your car?
A. Yes. The young guy, he came. He opened my car door.
He got in my car with the gun and he took my money out of my
glove compartment where I had my money at and he took my car
keys.
Q. All right. Did you have anything else inside of your
glove—are you talking about the center console of the car?
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A. The armrest. I had my money in the armrest.
Q. That would be between the driver and passenger seat?
A. Yes.
Q. In the front?
A. Yes.
Q. Did you have anything else other than your money?
A. He took my car keys.
Q. Did you have a cell phone on you that day?
A. Yes, he took my cell phone, too.
Q. Where was that at?
A. That was in the console.
Q. It was in there, too?
A. Yes.
Q. How much money was inside?
A. I had just got paid. It was about $150. It was a small
paycheck because I only worked about two or three days that day
[sic], but I just had it in my console.
Q. All right. Do you –is that where you always keep money?
A. Yes. Correct.
Q. Does anyone else know where you keep your money?
A. Correct.
Q. Who?
A. [Appellant].
***
Q. When this individual Duly pulls out the gun, do you
remember where he pulled the gun from?
A. Out of his jacket pocket.
Q. Jacket pocket?
A. Uh, huh.
Q. What kind of gun was it?
A. 9 millimeter.
***
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Q. Now, where is [Appellant] at when this is happening?
A. Actually, he was like standing outside. Like it looked like
he was coaching everything.
Q. Why do you say it looked like that?
A. Because literally like he—I literally looked at him and
asked him, like you would actually let this man rob me like this?
He looked at me like I was crazy. Like, my own flesh. I’m not
going to call him my flesh and blood. I’m just going to call him
[Appellant]. If you see on the video, I said, You’re really going to
let this happen to me after all I done for you? And he looked at
me like I was crazy.
Q. Okay. What did you do when you first saw the gun?
A. Man, I was paranoid. I was paranoid. I did not know if
he was going to shoot me or if he wasn’t going to shoot me.
Q. So you were afraid?
A. Yes, I was afraid.
Q. Did Duly say anything to you?
A. He said, If you make a move, I’m going to kill you.
Q. All right. So do you get out of the car? Do you stay in
the car?
A. Like when he was in the car with the gun, I actually got
out of the car. And that’s when I looked at [Appellant]. I said,
You’re going to literally let this happen? And that’s when he got
the money out of the armrest. He got my car keys. He got out
of the car. And after I said what I said to [Appellant] [“Duly”]
said, Come on. We out. We out. We out. We out. Get let’s [sic]
of here.
Id. at 85-90.
Mr. Truesdale testified Appellant and “Duly” walked back into the market
together while Mr. Truesdale attempted to stop someone on the street so that
he could call 911. Id. at 91. A brief time later, Appellant and “Duly” exited
the market together, and Mr. Truesdale asked Appellant how he could “let
something like that happen[,]” to which Appellant responded, “That’s your
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beef. That’s y’all problem. That’s y’all issue. I ain’t got nothing to do with
that.” Id. Mr. Truesdale then watched while Appellant and “Duly” walked
area from the area together. Id. at 91-92. Finally, a passerby permitted Mr.
Truesdale to use his cellphone so that he could call 911 to report the robbery.
Id. at 95.
Mr. Truesdale testified that after the police arrived on the scene he gave
them a description of the perpetrators, and he confirmed he gave a statement
to the detectives at police headquarters. Id. at 98. He also confirmed he
provided Appellant’s identity as one of the perpetrators, and he affirmatively
identified Appellant from a police photograph. Id. at 98-99. Mr. Truesdale
admitted he specifically informed Detective Martin that “Appellant was
involved in th[e] robbery[.]” Id. at 100.
Mr. Truesdale confirmed that, during Appellant’s preliminary hearing on
January 24, 2017, he testified Appellant had nothing to do with the robbery.
Id. at 102. However, Mr. Truesdale explained he gave such testimony at the
preliminary hearing because he was “afraid for [his] life because two guys had
confronted [him] before [he] went to court and told [him] that [he] better go
to court and [he] better say [Appellant] didn’t have nothing [sic] to do with
it.” Id. Mr. Truesdale testified that, after he testified at Appellant’s
preliminary hearing, he left Pennsylvania and stayed in a homeless shelter in
a different state because he was afraid for his life. Id. at 107-08.
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Upon reviewing the October 4, 2016, video surveillance footage from
inside and outside of the Carolina Market in the courtroom, Mr. Truesdale
confirmed the video depicted him going into the market, and “Duly” and
Appellant were also inside of the market. Id. at 115-16. The video depicted
Mr. Truesdale retrieving the money from his vehicle and handing the money
to Appellant inside the market. Id. at 117.
Mr. Truesdale confirmed the video depicted that, after he gave the
money to Appellant, and he got his coffee, he left the market and crossed the
street to talk to a friend. Id. at 120. The video depicts Appellant following
Mr. Truesdale out of the market, glancing at Mr. Truesdale as he crossed the
street, leaning into Mr. Truesdale’s vehicle via the opened front passenger
window, and rifling around inside the vehicle. Id. at 120. Mr. Truesdale
testified he went back to his vehicle and asked Appellant what he was looking
for in the vehicle. Id. at 121. Mr. Truesdale testified he did not give Appellant
permission to look or search for anything inside of his vehicle. Id.
Mr. Truesdale confirmed the video then depicts that Mr. Truesdale went
back across the street while Appellant went inside of the Carolina Market. Id.
at 122. Shortly thereafter, the video shows Appellant and “Duly” exiting the
market together and approaching Mr. Truesdale’s vehicle on the passenger
side while Mr. Truesdale re-approached the vehicle on the driver’s side. Id.
at 123. Pointing to the video, Mr. Truesdale testified he quickly entered his
vehicle with the intent of driving away; however, before he could do so, “Duly”
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entered the passenger side with his gun drawn. Id. at 123-24. The video
depicts Appellant walking around to the driver’s side, and Mr. Truesdale
quickly jumping out of his vehicle. Id.
Mr. Truesdale testified he asked Appellant why he was letting “this go
down[,]” and Appellant said “F” you to Mr. Truesdale. Id. at 124. The video
shows “Duly” removing items from the center console while Appellant
remained by Mr. Truesdale’s side. Id. at 124. The video shows “Duly” exiting
the vehicle and walking into the market while Appellant continued exchanging
words with Mr. Truesdale. Id. at 125-26. Within fifteen seconds, Appellant
went back into the market with “Duly.” Id. at 126-27. Mr. Truesdale
confirmed the video reveals that, after Appellant rejoined “Duly” in the
market, Appellant shook “Duly’s” hand. Id. at 137.
Police Officer Peter Plousis testified that on October 26, 2016, he went
to the 800 block of West Rockland Street to “backup the execution of an arrest
warrant” on Appellant. Id. at 150. Officer Plousis indicated that by the time
he arrived on the scene Appellant was already in custody, and he transported
Appellant to the police station. Id. at 152-53. Officer Plousis indicated
Appellant provided biographical information for a police form, and Appellant
listed his address as “1828 South Taylor.” Id. at 153-54.
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At the conclusion of the Commonwealth’s case, Appellant made a motion
for a judgment of acquittal, and the trial court denied the motion.4 Id. at 158.
The jury convicted Appellant solely on one count of conspiracy (to commit
robbery) and acquitted him on the charges of robbery, theft by unlawful
taking, firearms not to be carried without a license, and carrying firearms in
public in Philadelphia. N.T., 11/30/17, at 36-37.
The Commonwealth filed a notice of intent to seek the imposition of a
mandatory sentence pursuant to 42 Pa.C.S.A. § 9714. On February 9, 2018,
following a hearing, the trial court sentenced Appellant to ten years to twenty
years in prison. On February 20, 2018, Appellant filed a timely, counseled
post-sentence motion,5 and on June 12, 2018, he filed a notice of appeal. On
June 21, 2018, the Clerk of Courts entered an order denying Appellant’s post-
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4 The defense offered no witnesses, and Appellant voluntarily waived his right
to testify. Id. at 159-60.
5 Generally, a defendant has ten days to file post-sentence motions.
Pa.R.Crim.P. 720. Here, the time period expired on Monday, February 19,
2018, which was a legal holiday. Accordingly, Appellant had until Tuesday,
February 20, 2018, to file a timely post-sentence motion. See 1 Pa.C.S.A. §
1908 (“Whenever the last day of any such period shall fall on Saturday or
Sunday, or on any day made a legal holiday by the laws of this Commonwealth
or of the United States, such day shall be omitted from the computation [of
time].”).
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sentence motion by operation of law.6 All Pa.R.A.P. 1925 requirements have
been met.
On appeal, Appellant’s sole issue is whether the evidence was sufficient
to sustain his conviction for criminal conspiracy (to commit robbery). In this
regard, Appellant contends there is no evidence of a conspiratorial agreement
between him and any other person and, in fact, he was merely present when
the robbery occurred.
A successful sufficiency-of-the-evidence claim requires discharge.
Commonwealth v. Toritto, 67 A.3d 29 (Pa.Super. 2013) (en banc).
Whether the evidence was sufficient to sustain the charge presents a question
of law. Id. Our standard of review is de novo, and our scope of review is
plenary. Commonwealth v. Walls, 144 A.3d 926 (Pa.Super. 2016). In
conducting our inquiry, we examine:
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to the
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6 Appellant filed post-sentence motions on February 20, 2018, and a
premature notice of appeal on June 12, 2018, before the court ruled on the
post-sentence motions. The post-sentence motions were denied by operation
of law on June 21, 2018. Thus, Appellant’s appeal relates forward to June 21,
2018, and there are no jurisdictional impediments to our review. See
Commonwealth v. Borrero, 692 A.2d 158 (Pa.Super. 1997) (explaining
general rule that if defendant files timely post-sentence motion, judgment of
sentence does not become final for purposes of appeal until trial court disposes
of motion or motion is denied by operation of law). See also Commonwealth
v. Ratushny, 17 A.3d 1269, 1271 n.4 (Pa.Super. 2011) (explaining if court
denies an appellant’s post-sentence motion following filing of premature notice
of appeal, this Court will treat the appellant’s premature notice of appeal as
having been filed after entry of order disposing of post-sentence motion).
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Commonwealth as verdict-winner, [is] sufficient to establish all
elements of the offense beyond a reasonable doubt. We may not
weigh the evidence or substitute our judgment for that of the fact-
finder. Additionally, the evidence at trial need not preclude every
possibility of innocence, and the fact-finder is free to resolve any
doubts regarding a defendant’s guilt 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. When
evaluating the credibility and weight of the evidence, the fact-
finder is free to believe all, part or none of the evidence. For
purposes of our review under these principles, we must review the
entire record and consider all of the evidence introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa.Super. 2014)
(quotation omitted). Further, a conviction may be sustained wholly on
circumstantial evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40
(Pa.Super. 2014).
The Crimes Code relevantly defines the crime of “conspiracy” as follows:
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such crime
or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
18 Pa.C.S.A. § 903 (bold in original).
In examining this statutory provision, this Court has held the following:
The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is to be
accomplished. Mere association with the perpetrators, mere
presence at the scene, or mere knowledge of the crime is
insufficient. Rather, the Commonwealth must prove that the
defendant shared the criminal intent, i.e., that the Appellant was
“an active participant in the criminal enterprise and that he had
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knowledge of the conspiratorial agreement.” The defendant does
not need to commit the overt act; a co-conspirator may commit
the overt act. Commonwealth v. Johnson, 719 A.2d 778, 784
(Pa.Super. 1998) (en banc)[.]
A conspiracy is almost always proved through circumstantial
evidence. Commonwealth v. Swerdlow, 636 A.2d 1173, 1176
([Pa.Super.] 1994). “The conduct of the parties and the
circumstances surrounding their conduct may create ‘a web of
evidence’ linking the accused to the alleged conspiracy beyond a
reasonable doubt.” Johnson, 719 A.2d at 785. The evidence
must, however, “rise above mere suspicion or possibility of guilty
collusion.” Swerdlow, 636 A.2d at 1177 (citation omitted).
This Court has identified factors to be considered:
Among the circumstances which are relevant, but not
sufficient by themselves, to prove a corrupt
confederation are: (1) an association between alleged
conspirators; (2) knowledge of the commission of the
crime; (3) presence at the scene of the crime; and (4)
in some situations, participation in the object of the
conspiracy. The presence of such circumstances may
furnish a web of evidence linking an accused to an
alleged conspiracy beyond a reasonable doubt when
viewed in conjunction with each other and in the
context in which they occurred.
Commonwealth v. Olds, 469 A.2d 1072, 1075 ([Pa.Super.]
1983).
Once there is evidence of the presence of a conspiracy,
conspirators are liable for acts of co-conspirators committed in
furtherance of the conspiracy. Even if the conspirator did not act
as a principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.
The general rule of law pertaining to the culpability of
conspirators is that each individual member of the
conspiracy is criminally responsible for the acts of his
co-conspirators committed in furtherance of the
conspiracy. The co-conspirator rule assigns legal
culpability equally to all members of the conspiracy.
All co-conspirators are responsible for actions
undertaken in furtherance of the conspiracy
regardless of their individual knowledge of such
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actions and regardless of which member of the
conspiracy undertook the action.
Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa.Super.
2001).
The premise of the rule is that the conspirators have formed
together for an unlawful purpose, and thus, they share the intent
to commit any acts undertaken in order to achieve that purpose,
regardless of whether they actually intended any distinct act
undertaken in furtherance of the object of the conspiracy. It is the
existence of shared criminal intent that “is the sine qua non of a
conspiracy.”
Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa.Super. 2002) (en
banc) (some citations and quotations omitted). Ultimately, “where the
conduct of the parties indicate that they were acting in concert with a corrupt
purpose in view, the existence of a criminal conspiracy may properly be
inferred.” Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa.Super. 2014)
(en banc).
Reviewing the record in the light most favorable to the Commonwealth,
as verdict winner, we conclude the record reflects there was ample evidence
for the jury to conclude Appellant and “Duly” were acting in concert with a
corrupt purpose because all of the relevant circumstances discussed in
Lambert are present.
Initially, the record reflects Appellant and “Duly” had an association, and
it is undisputed Appellant was present at the scene of the robbery. The video
footage from the surveillance camera inside the Carolina Market shows
Appellant and “Duly” conversing at length prior to Mr. Truesdale’s arrival.
Further, Mr. Truesdale testified Appellant referred to “Duly” as “my young bol.”
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N.T, 11/29/17, at 85. Moreover, Mr. Truesdale testified that, after the
robbery, “Duly” said to Appellant, “Come on. We out. We out. We out.” Id.
at 90. The two men walked back into the Carolina Market within fifteen
seconds of each other after the robbery, shook hands, and then walked away
from the market together.
Moreover, there is ample evidence Appellant had “knowledge” that
“Duly” would rob Mr. Truesdale, and he “participated” in the conspiracy.
Lambert, 795 A.2d at 1016-17. Appellant, as opposed to “Duly,” first
approached Mr. Truesdale and asked him for money. Apparently unsatisfied
with the $5.00 Mr. Truesdale gave to him, Appellant, as confirmed by the
surveillance video footage, followed Mr. Truesdale out of the market, glanced
at Mr. Truesdale as he crossed the street, and rifled through Mr. Truesdale’s
vehicle until Mr. Truesdale returned to stop him. Mr. Truesdale testified he
did not give Appellant permission to search or look for anything inside of his
vehicle. N.T., 11/29/17, at 120.
Appellant then rejoined “Duly” inside of the Carolina Market while Mr.
Truesdale continued his conversation with a friend across the street. Id. at
122. When Mr. Truesdale returned to his vehicle, Appellant and “Duly” exited
the market and approached the vehicle together. Id. at 123. Mr. Truesdale
intended to drive away; however, as confirmed by the surveillance video
footage and Mr. Truesdale’s testimony, Appellant walked around to the
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driver’s side while “Duly” entered the front passenger side seat and pointed a
gun at Mr. Truesdale. Id. at 123-24.
There is no evidence “Duly” asked Mr. Truesdale where he kept his
money; but rather, “Duly” simply opened the center console and removed the
cash. Id. Mr. Truesdale testified Appellant, who was his step-cousin, knew
he kept cash in the center console. Id. at 87. Additionally, Mr. Truesdale
testified when he asked Appellant, with whom he had a recent disagreement,
why he was allowing “Duly” to take the money, Appellant said, “‘F’ you” to Mr.
Truesdale. Id. at 124.
Based on this evidence, the jury could infer Appellant knew “Duly” was
going to rob Mr. Truesdale. See Lambert, 795 A.2d at 1016-17. Further, the
jury could infer Appellant participated in the robbery by advising “Duly” of
where Mr. Truesdale kept his money, as well as approaching the vehicle on
the driver’s side while “Duly” committed the robbery. See id. As the trial
court specifically noted, “even if there w[as] a flicker of doubt [about the
existence of the conspiracy,] it would have been entirely snuffed out by the
two men shaking hands—celebrating their enterprise—immediately after the
robbery.” Trial Court Opinion, filed 3/7/19, at 13.
Appellant contends he was “merely present” at the scene when the
robbery occurred. However, as indicated supra, from the evidence presented,
the jury could conclude Appellant and “Duly” were engaged in concerted
activity with Appellant as an active participant, as opposed to a mere
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bystander. Accordingly, the evidence is sufficient to support his conviction for
criminal conspiracy.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/20
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