J-S19043-18

2018 PA Super 193

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* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

 Appellee

v.

DARRELL JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2721 EDA 2017

Appeal from the Judgment of Sentence July 19, 2017

in the Court of Common Pleas of Montgomery County 

Criminal Division at No.: CP-46-CR-0007273-2016

BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.

OPINION BY PLATT, J.: FILED JUNE 29, 2018

Appellant, Darrell Johnson, appeals from the judgment of sentence 

imposed following his jury conviction of two counts each of robbery and 

aggravated assault, and one count each of criminal conspiracy, person not to 

possess a firearm, and firearms not to be carried without a license.1 We 

affirm.

We take the relevant facts and procedural history of this case from our 

independent review of the certified record. On August 20, 2016, at about 

10:30 p.m., the victim, Anthony Gibbons, went to a bar with Appellant’s cousin

and accomplice in this crime, Latia Lofton. While they were at the bar, Lofton 

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1 18 Pa.C.S.A. §§ 3701, 2702, 903, 6105 and 6106, respectively. Appellant 

was ineligible to possess a firearm because of a prior robbery conviction, and 

did not own a valid license to conceal or carry a firearm. (See N.T. 

Sentencing, 7/19/17, at 4-5, 18; N.T. Trial, 3/23/17, at 98).
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went in and out of the restroom multiple times, and used her cellphone to

send text messages and make a phone call. When Gibbons and Lofton went 

outside to smoke a cigarette at Lofton’s request, Appellant approached them 

with his face covered. Appellant was carrying a gun, and he snatched Lofton’s 

pocketbook. Appellant put the gun to Gibbons’ head and demanded his 

cellphone, keys and money.2 Gibbons complied, and then pulled his own gun 

from his car. Both men started shooting, and Gibbons was struck in his foot 

and back. The bar owner called 911, and police and an ambulance responded 

to the scene.

Police recovered Lofton’s cellphone, and downloaded and reviewed text 

messages from the night of the robbery indicating that she and Appellant 

planned the robbery together. One of the text messages read: “You gone 

[sic] see us out front. We in parking lot. Take my purse too.” (N.T. Trial, 

3/22/17, at 77, 87). Lofton eventually gave a statement to police confirming 

her involvement in the robbery.

3

 Cell site analysis performed on Appellant’s 

cellphone placed him in the general vicinity of the bar on the night of the 

incident. Police recovered a handgun from Appellant’s home during a search 

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2 Relevant to this appeal, Gibbons testified that he had “a couple hundred” 

dollars on him, but not as much as $900.00. (N.T. Trial, 3/22/17, at 54-55). 

Lofton testified that, after the robbery, Appellant gave her $300.00, and told 

her that he took $900.00 from Gibbons. (See id. at 95-96).

3 She entered an open guilty plea to the charges brought against her in this 

case. (See N.T. Trial, 3/22/17, at 92).
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of his residence. The gun matched the firearm used in the robbery, and DNA 

testing showed Appellant’s DNA on the gun, along with two other contributors.

Appellant proceeded to a jury trial on March 22, 2017. At the conclusion 

of the Commonwealth’s case, defense counsel moved to dismiss the firearms 

not to be carried without a license charge, arguing that the Commonwealth 

failed to establish certain elements of the crime. The trial court denied the 

motion. The jury found Appellant guilty of the above-listed offenses on March 

24, 2017. On July 19, 2017, the trial court sentenced Appellant to an 

aggregate term of not less than twenty-five nor more than fifty years’ 

incarceration.

Appellant, acting pro se, filed post-sentence motions dated July 25, 

2017 and docketed on August 2, 2017, which the trial court accepted as timely

under the prisoner mailbox rule.

4

 On August 8, 2017, the trial court entered 

an order denying the post-sentence motions and advising Appellant of his right 

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4 This rule provides that a pro se prisoner’s document is deemed filed on the 

date he delivers it to prison authorities for mailing, i.e., in this case, July 25, 

2017. See Commonwealth v. Jordan, 2018 WL 1476241, at *1 n.3 (Pa. 

Super. filed Mar. 27, 2018).

We note that, at the time Appellant filed his pro se post-sentence 

motions, his privately-retained trial counsel had not yet withdrawn his 

appearance. While hybrid representation is generally not permitted, our 

Supreme Court has held that a pro se notice of appeal from a judgment of 

sentence filed by a represented appellant is not automatically void. See 

Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) (validating pro se

notice of appeal filed by counseled criminal defendant). Accordingly, in the 

interest of judicial economy, we will treat Appellant’s post-sentence motions 

as timely, as the trial court did. (See Trial Court Opinion, 12/18/17, at 2).
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to appeal. Appellant filed a timely counseled notice of appeal on August 25, 

2017. He timely complied with the trial court’s order to file a concise 

statement of errors complained of on appeal, and the court entered an opinion 

on December 18, 2017. See Pa.R.A.P. 1925.

Appellant raises three questions for our review:

1. Whether the trial court erred in denying Appellant’s challenge 

to the weight of the evidence[?]

2. Whether the trial court erred in denying defense counsel’s 

request for a corrupt and polluted source charge in the final charge 

to the jury[?5]

3. Whether the trial court erred in failing to grant Appellant’s 

motion to dismiss the firearms charge at the end of the 

Commonwealth’s case[?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted). 

Appellant first challenges the weight of the evidence supporting his 

conviction, claiming that Latia Lofton’s testimony regarding the robbery was 

not credible or believable.

6

 (See Appellant’s Brief, at 16-25). Appellant’s

argument focuses primarily on the discrepancy between the testimony of 

Lofton and Gibbons regarding the amount of money involved in the incident, 

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5 “[T]he standard charge for accomplice testimony [is] commonly referred to 

as the corrupt and polluted source charge.” Commonwealth v. Lawrence, 

165 A.3d 34, 44 (Pa. Super. 2017) (citation and footnote omitted). In this 

case, the trial court issued such instruction immediately prior to Latia Lofton’s 

testimony. (See N.T. Trial, 3/22/17, at 78-80).

6 Appellant preserved his weight claim by raising it in his post-sentence 

motion. See Pa.R.Crim.P. 607(A)(3).
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which Appellant claims raises reasonable doubt as to whether a robbery 

occurred. (See id. at 16-17, 20-22, 25; see also supra at *2 n.2). Appellant

asserts that “if [Gibbons] had a couple hundred dollars on him and Lofton 

claimed [Appellant] took [$]900.00 from [Gibbons] and gave [$]300.00 to 

Lofton, no robbery took place.” (Appellant’s Brief, at 25; see id. at 16, 22). 

This issue does not merit relief.

At the outset, we note that the weight attributed to the 

evidence is a matter exclusively for the fact finder, who is free to 

believe all, part, or none of the evidence and to determine the 

credibility of the witnesses. The grant of a new trial is not 

warranted because of a mere conflict in the testimony and must 

have a stronger foundation than a reassessment of the credibility 

of witnesses. Rather, the role of the trial judge is to determine 

that, notwithstanding all of the facts, certain facts are so clearly 

of greater weight, that to ignore them or to give them equal 

weight with all of the facts is to deny justice.

An appellate court’s purview:

is extremely limited and is confined to whether the 

trial court abused its discretion in finding that the jury 

verdict did not shock its conscience. Thus, appellate 

review of a weight claim consists of a review of the 

trial court’s exercise of discretion, not a review of the 

underlying question of whether the verdict is against 

the weight of the evidence.

An appellate court may not reverse a verdict unless it is so 

contrary to the evidence as to shock one’s sense of justice. [T]he 

trial court’s denial of a motion for a new trial based on a weight of 

the evidence claim is the least assailable of its rulings.

Commonwealth v. Hicks, 151 A.3d 216, 223 (Pa. Super. 2016), appeal 

denied, 168 A.3d 1287 (Pa. 2017) (citations and quotation marks omitted).
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Here, the trial court determined that the testimony of Lofton and 

Gibbons, when viewed as a whole, was complimentary, and that the difference 

regarding the amount of money taken was a minor discrepancy. (See Trial 

Ct. Op., at 6-7). Upon review of the record, we agree. As the trial court

points out, the jury, as factfinder, heard each of the witnesses’ testimony 

concerning the amount of money involved in the robbery and was free to 

resolve any conflict. Therefore, we conclude that the trial court did not abuse 

its discretion in finding that the jury’s verdict did not shock its conscience. 

See Hicks, supra at 223.

7

 Appellant’s first issue lacks merit.

Appellant next challenges the trial court’s denial of his request that it 

repeat, during its final charge to the jury, the corrupt and polluted source 

instruction that it had already issued immediately before Latia Lofton’s 

testimony. (See Appellant’s Brief, at 26-29; see also supra at *4 n.5). 

Appellant acknowledges that the court gave this instruction before Lofton’s 

testimony, but contends that it was necessary for the court to restate it in its 

final charge. (See Appellant’s Brief, at 26-27, 29). This issue does not merit 

relief. 

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7

In his weight claim, Appellant also briefly challenges the DNA evidence 

relating to the gun at issue in this case, arguing that although his DNA was on 

the gun, police should have analyzed the two other contributing DNA samples

as potential perpetrators. (See Appellant’s Brief, at 16, 23). However, this 

argument discounts the fact that the gun was found in his home shortly after 

the robbery, under a mattress. (See N.T. Trial, 3/23/17, at 27, 127). 

Furthermore, the jury heard testimony explaining that there were two other 

contributing DNA samples on the gun, and was free to weigh this evidence. 

(See id. at 77, 81); see also Hicks, supra at 223.
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When reviewing jury instructions, we are governed by the 

following standard:

Our standard of review in assessing a trial 

court’s jury instructions is as follows:

[W]hen evaluating the propriety of jury 

instructions, this Court will look to the instructions as 

a whole, and not simply isolated portions, to 

determine if the instructions were improper. . . . Only 

where there is an abuse of discretion or an inaccurate 

statement of the law is there reversible error.

Commonwealth v. Patterson, 2018 WL 771822, at *5 (Pa. Super. filed Feb. 

8, 2018) (citations omitted). 

The Pennsylvania Rules of Criminal Procedure provide trial courts with 

the authority to give instructions to the jury “before the taking of evidence or 

at anytime during the trial as the judge deems necessary and appropriate for 

the jury’s guidance in hearing the case.” Pa.R.Crim.P. 647(E). Regarding the 

propriety of issuing a corrupt and polluted source instruction, this Court has 

explained:

. . . [I]n any case where an accomplice implicates the 

defendant, the judge should tell the jury that the accomplice is a 

corrupt and polluted source whose testimony should be viewed 

with great caution. . . . 

The ‘corrupt source’ charge in particular is designed 

specifically to address situations where one accomplice testifies 

against the other to obtain favorable treatment. It directs the jury 

to view the testimony of an accomplice with disfavor and accept it 

only with care and caution.

Lawrence, supra at 44-45 (citations and most quotation marks omitted).

Here, as noted, the record reflects that the trial court did issue a 

thorough and comprehensive corrupt and polluted source instruction, 
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spanning more than two pages of the trial transcript, immediately before

Lofton’s testimony. (See N.T. Trial, 3/22/17, at 78-80). When defense 

counsel requested that the court repeat the instruction as part of its final 

charge, it declined to do so, stating: “I’m going to tell the jury again, as I’ve 

told them previously, the instructions are considered as a connected series 

and I’ll remind them of the things I said earlier.” (N.T. Trial, 3/23/17, at 102). 

At the beginning of its final charge, the court explained this continuum in 

instructions to the jury; stated that it would be happy to repeat any previously 

issued instruction; and directed that all of its instructions, taken together,

constitute the law the jury must follow. (See N.T. Trial, 3/24/17, at 43). The 

court then issued a general charge regarding witness credibility, instructing

the jury to consider whether the witnesses had any bias or motive to testify 

falsely, or any interest in the outcome of the case. (See id. at 43-45).

Upon review, we discern no abuse of discretion or error of law in the 

trial court’s decision to decline to issue a second corrupt and polluted source 

jury instruction. See Patterson, supra at *5. The court issued the 

instruction when it deemed necessary and appropriate, and reminded the jury 

in the final charge of its obligation to follow all instructions. See Pa.R.Crim.P. 

647(E). In his brief, Appellant concedes that he could find no case law to 

support his argument that the trial court was required to repeat an instruction 

it had already issued. (See Appellant’s Brief, at 27). To the contrary, it is 

well-settled that the jury is presumed to follow all of the trial court’s 

instructions. See Commonwealth v. Smith, 167 A.3d 782, 790 (Pa. Super. 
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2017), appeal denied, 179 A.3d 6 (Pa. 2018). Accordingly, Appellant’s second 

issue merits no relief.

In his final issue, Appellant claims the trial court erred in failing to grant 

his motion to dismiss the firearms not to be carried without a license charge 

at the end of the Commonwealth’s case. (See Appellant’s Brief, at 30-34). 

He argues that the court should have granted this motion where the 

Commonwealth failed to establish the elements of transport or concealment 

of the gun. (See id. at 30, 33). This issue is waived. 

“[W]hen a defendant does not rest following denial of a demurrer, but 

instead presents a defense, the correctness of the ruling on the demurrer is 

not preserved for appellate review; the proper procedure is to challenge the 

sufficiency of the evidence.” Commonwealth v. Zambelli, 695 A.2d 848, 

849 n.1 (Pa. Super. 1997) (citations omitted). 

In this case, the record reflects that Appellant presented a defense after 

the court denied his motion for a demurrer. (See N.T. Trial, 3/23/17, at 100-

01, 106). Therefore, we agree with the trial court and the Commonwealth 

that he did not properly preserve this issue for appellate review. See 

Zambelli, supra at 849 n.1; (see also Trial Ct. Op., at 11-12; 

Commonwealth’s Brief, at 14-15).

Moreover, even if Appellant instead had challenged the sufficiency of the 

evidence to support the firearms violation, he would not be entitled to relief.

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 
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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 [that 

of] 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 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. Mickel, 142 A.3d 870, 876 (Pa. Super. 2016) (citations 

omitted).

Section 6106 of the Crimes Code provides, in pertinent part, that “any 

person who carries a firearm in any vehicle or any person who carries a firearm 

concealed on or about his person, except in his place of abode or fixed place 

of business, without a valid and lawfully issued license under this chapter 

commits a felony of the third degree.” 18 Pa.C.S.A. § 6106(a)(1). “[T]o 

establish a violation of section 6106, the Commonwealth must establish that 

a defendant acted intentionally, knowingly or recklessly with respect to each 

element[.]” Commonwealth v. Scott, 176 A.3d 283, 291 (Pa. Super. 2017)

(citations and internal quotation marks omitted).

Here, the evidence showed that Appellant drove his work van to the bar 

on the night of the incident. (See N.T. Trial, 3/22/17, at 161-63). He 

approached Gibbons and Lofton outside of the bar with a gun, put the gun to 
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Gibbons’ head, and shot him in the foot and back. (See id. at 23-26). Police 

then recovered the gun from his home. (See N.T. Trial, 3/23/17, at 27).

Upon review, viewing the evidence admitted at trial in the light most 

favorable to the Commonwealth as verdict winner, we conclude that the 

evidence was sufficient to sustain Appellant’s conviction for firearms not to be 

carried without a license. The evidence clearly established that Appellant

intentionally carried a firearm in a vehicle without a valid and lawfully issued 

license. See 18 Pa.C.S.A. § 6106(a)(1); Scott, supra at 291. Therefore, 

Appellant’s final issue would not merit relief, even if it were not waived. 

Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/18