J

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- 18 2018 PA Super 193

____________________________________ * Retired Senior Judge assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA

Appellee

v. DARRELL JOHNSON

Appellant : : : : : : : : : 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 c onviction of two counts each of robbery and aggravated assault, and one count each of criminal conspir acy, person not to
possess a firearm , and firearms not to b e 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
10:3 0 p.m., the victim, Anthony Gibbons, went to a bar with Appellan t’s cousin and accomplice in this crime , Latia Lofton. While they were at the bar, Lo fton

_________________ __________ ______ ____ _______ 1 18 Pa.C.S.A. §§ 3701, 2702, 903 , 6105 and 6106, respectively. Appella nt 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 ).J

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went in and out of the rest room 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 starte d shooting, and Gibbons was struck in his foot and b ack. The bar owner ca lled 911, and police and an am bulance responded to the scene. Police recovered Lofton’s cellph one , 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, 3/2 2/17, at 77, 87). Lofton eventually gave a statement to police confirming her involvement in the robbery

. 3 Cell s ite 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 dur ing a search

_________________ __________ ______ ____ _______ 2 Rel evant 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 $ 90 0.00 fr om 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).J

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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. App ellant 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. T he tri al 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 th an 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, t he trial court entered an order denying the post

- sente nce motion s and advising Appellant of his right

_________________ __________ ______ ____ _______ 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, a t 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 crimin al 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).J

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to appeal. Appellant filed a timely counseled notice of appeal on August 25,
2017. He timely compl ied with the trial court’s order to file a concise statement of errors complained of on appeal, and the cour t 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 m oney involved in the incident ,

_________________ __________ ______ ____ _______ 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).J

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which Appellant claims raises reasonable doubt as to whether a robbery

occur red

. ( See id. at 16

- 17, 20

- 22 , 25 ; see also supra at *2 n.2). Appellant
asserts tha t “if [Gibbons] had a couple hundred doll ars 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 ).
T hi s 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 t o determine the credibility of the witnesses. The grant of a new tri al 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 jud ge 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 o f 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 verdic t 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 unde rlying 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 le ast 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).J

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Here, the trial court det ermined t hat the testimony of Lofton and Gibbon s , 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 th e 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 t hat 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 tri al 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 acknowledge s that the court gave this instruction before Lofton’s
testi mony, but contends that it was necessary for the court to restate it in its final charge. ( See Appellant’s Brief, at 26

- 27 , 29 ). Th is issue does not merit relief.

_________________ __________ ______ ____ _______ 7 I n his weight claim, Appellant also briefly challenges the DNA evidence relat ing to the gun at issue in this case , arguing that although his DNA was on the gun, police should have analy zed the two other contributing DNA samples as potential perpetrators . ( See Appellant’s Brief, at 16 , 23 ). Ho wever, 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); s ee also Hicks , supra at 223.J

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- When reviewing jury instructions, we are governed by the following standard:

Our standard of re view 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 t he instructions were imp roper. . . . 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 Crimi nal Procedure provide trial court s with the authority to give instructions to the jury “before the taking of evidence or
at anytime during the trial as the judge deems necessa ry and appropriate for the jury’ s guidance in hearing the case.” Pa.R.Crim.P. 64 7(E). Reg arding 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 v i ewed 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 (citation s and most quotation marks omitted). Here, as noted, the record reflects that the trial court did issue a t horough and comprehensive corrupt and polluted source instruction,J

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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 instruction s 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 explain ed this continuum in
instructions to the jury; stated that it would be happy to repeat any p revious ly 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 witness es had a ny bias or motive to testify falsely , or any int erest in the outcome of the case . ( See id. at 43

- 45 ). Upon review, we discern no abuse of discretio n 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 conc edes that he could find no case law to

su pport his argum ent that the trial court was required to repeat a n instruction it had already issued

. ( See Appellant’s Brief, at 27 ). To the contrary, i t is well

- settled that t he jury is pre sumed to follow all of the trial court’ s instructions. See Commo nwealth v. Smith , 16 7 A.3d 782, 790 (Pa. Super.J

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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 hi s 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 t his 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; t he proper procedure is to challenge t he sufficiency of the evidence.” Commo nwealth v. Zambelli , 69 5 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 de nied his motion for a demurrer. ( See N.T. Trial, 3/23/17, at 100

- 0 1, 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 C t. Op., at 11

- 12;
C ommonwealth’s Brief, at 14

- 15). Moreover, even if Appellant instead had challenged the sufficiency of the
evi dence 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 sufficientJ

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evidence to enable the fact

- finder to find every element of the crime beyond a reasonable doubt. In applying the a bove 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. A ny doubts regardi ng 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 , 14 2 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 lawful ly 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 es tablish that a defendant acted intentio nally, knowingly or recklessly with respect to each element[.]” Commonwealth v. Scott , 17 6 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, 3/22/1 7, at 16 1

- 6 3). He approached Gibbons and Lofton outside of the bar with a gun, put the gun toJ

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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 re view, 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 c learly 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