Commonwealth v. Preston

1

COMMONWEALTH OF PENNSYLVANIA v. JAIQWON LASHAD PRESTON Appellant

No. 1299 MDA 2023

No. J-S08021-24

Superior Court of Pennsylvania

March 21, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 14, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001911-2019

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

MURRAY, J.

Jaiqwon Lashad Preston (Appellant) appeals, nunc pro tunc, from the judgment of sentence^[1] imposed after a jury convicted him of one count each of robbery, conspiracy to commit robbery, criminal use of a communication facility (CUCF), and recklessly endangering another person (REAP).^[2] We affirm.

The trial court recounted the underlying facts and procedural history:

On March 15, 2019, Robert Appleby, a detective with the Lower Swatara Police Department, filed a criminal complaint charging Appellant with one (1) count of robbery[], one (1) count of aggravated assault, one (1) count of criminal conspiracy [to commit robbery], one (1) count of [CUCF], one (1) count of [REAP], and one (1) count of criminal mischief. These charges stemmed from an incident that occurred on October 23, 2018.

Following a trial by jury before the Honorable Richard Lewis on September 13-14, 2021, Appellant was convicted of robbery[], conspiracy to commit robbery[], [CUCF,] and [REAP]; the charges of aggravated assault and criminal mischief were withdrawn.

….

At Appellant's trial, Meria Mowrer testified that she was best friends and living with Kaitlyn Aston when she met Appellant, around August of 2018. N.T., 9/13/23, 25-28. [Ms. Mowrer] explained that when she met Appellant, he and Ms. Aston were in an intimate relationship. Id. at 32….

Ms. Mowrer explained that on [October 20, 2018], Ms. Aston made arrangements[,] through a site called OfferUp, to sell two women's watches to Zohar Ghobrini [(the victim)]. Id. [Ms. Mower and Ms. Aston] met [the victim] at a McDonald's parking lot[,] where [the victim] paid Ms. Aston cash for the watches. Id. at 38-40. Around a day later, Ms. Mowrer made arrangements to sell an item to [the victim], and the two women drove in Ms. Mowrer's car to meet [the victim] at a Turkey Hill convenience store. Id. at 41-42. Ms. Mowrer got out of her car and walked to the back of [the victim's] car to execute the sale. Id. It was then that Ms. Mowrer saw [the victim] take cash from a bag in his trunk. Id. Ms. Mowrer gave [the victim] her cell phone number [to facilitate direct purchases without the use of OfferUp]. Id. at 44. A few days later, Ms. Mowrer suggested to Ms. Aston that they rob [the victim]. Id. at 45.

Ms. Aston informed [the victim] that they had another item to sell him…. Id. at 47. They [ultimately arranged to meet the victim] at 481 Stoner Drive in Middletown. Id. This location was an abandoned road that had an abandoned farmhouse, where the women were waiting for [the victim], along with the Appellant and an individual named "Ant" or "Anthony." Id. at 47-48. It was Ms. Aston who suggested the Appellant be involved[,] and Ms. Mowrer agreed that he would be the "muscle." Id. at 48-49. The women positioned themselves, and the Appellant and "Ant" hid while they waited for [the victim] to arrive. Id. Ms. Mowrer explained that the plan was for the women to text the Appellant when it was "time" and that he would rough [the victim] up. Id.

[Ms. Mowrer, Ms. Aston, and the victim] went to the back of [the victim's] trunk where he had the money, and … Appellant tackled [the victim]. Id. at 58. The back windshield of the car shattered, and [the victim] fell to the ground[,] where the Appellant kicked him twice. Id. at 57. [Ms. Mowrer, Ms. Aston, and Appellant] then took cell phones out of the middle console of the car, a carton of cigarettes, and the bag of money out of the trunk and left. Id. at 58-61. Ms. Mowrer testified that the point of the plan was to take the bag of money in the trunk of the car. Id. at 63.

Trial Court Opinion, 11/16/23, at 1-6 (record citations modified; footnotes omitted).

On September 14, 2021, the trial court sentenced Appellant to an aggregate 4 to 10 years in prison. Appellant filed a timely post-sentence motion, which the trial court denied on October 20, 2021.

Following the denial of his post-sentence motion, Appellant applied for the services of the Dauphin County Public Defender's Office.^[3] On November 15, 2021, public defender counsel filed a petition for appointment of outside counsel, alleging a conflict of interest. Petition for Appointment of Counsel, 11/15/21, at 1 (unpaginated). The trial court granted the petition and appointed new counsel the same day.

Appointed counsel filed a motion to withdraw on April 12, 2022, acknowledging he failed to timely file a requested notice of appeal. Appointed counsel further indicated this failure required Appellant to file a Post Conviction Relief Act (PCRA)^[4] petition for reinstatement of his direct appeal rights. Motion to Withdraw, 4/12/22, at 1 (unpaginated). On May 2, 2022, the trial court granted counsel's motion. On October 24, 2022, Appellant filed a pro se PCRA petition seeking reinstatement of his direct appeal rights. The trial court reinstated Appellant's direct appeal rights on August 26, 2023, and the instant nunc pro tunc appeal followed. Both the trial court and Appellant have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for review:

1. Whether the trial court erred as a matter of law and/or abused its discretion in denying [Appellant's] challenge to the sufficiency of the evidence presented at trial to sustain a conviction.

2. Whether the trial court erred as a matter of law and/or abused its discretion in denying [Appellant's] challenge to the weight of the evidence regarding [Appellant's] conviction.

3. Whether the trial court erred as a matter of law and/or abused its discretion in denying [Appellant's] request for a reconsideration and/or modification of sentence to have counts 1 and 3 run concurrent to each other, rather than consecutive.

Appellant's Brief at 5 (issues numbered and reordered; capitalization modified).

In his first issue, Appellant purports to challenge the sufficiency of the evidence. See id. at 17. Appellant argues there was no evidence he "assaulted" the victim, and maintains the evidence presented "leaves room for reasonable doubt that another individual involved in the incident was the one who assaulted the victim…." Id. at 18-19.

Initially, we address whether Appellant preserved his sufficiency claim. In his court-ordered Pa.R.A.P. 1925(b) concise statement, Appellant challenged the "sufficiency of the evidence presented at trial to sustain his conviction, as set forth in [Appellant's post-sentence motion]." 1925(b)

Statement, 9/17/23, at 1 (unpaginated). However, Appellant failed to identify which of his convictions he wished to challenge, and which elements were not supported by sufficient evidence. Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) ("In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant's Rule 1925(b) statement must state with specificity the element or elements upon which the appellant alleges that the evidence was insufficient."). "Such specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citation omitted). As Appellant has failed to properly preserve his sufficiency challenge, his first issue is waived.

Even if Appellant had preserved his sufficiency claim, we would conclude his claim lacks merit. The standard of review for sufficiency challenges is well-settled:

Faced with such a challenge, an appellate court should determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, was sufficient to allow the fact finder to conclude that the Commonwealth established the challenged criminal element of the offense beyond a reasonable doubt.

Commonwealth v. Stevenson, 283 A.3d 196, 205 n.3 (Pa. 2023). "[T]he Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence[.]" Commonwealth v. Yandamuri, 159 A.3d 503, 514 (Pa. 2017) (citation omitted). Further, "[t]his Court may not substitute its judgment for that of the factfinder. If the record contains support for the verdict, it may not be disturbed." Commonwealth v. McFarland, 278 A.3d 369, 381 (Pa. Super. 2022) (quotation omitted).

In challenging whether the Commonwealth proved he had "assaulted" the victim, see Appellant's Brief at 18, Appellant ostensibly challenges the sufficiency of the evidence underlying his robbery conviction. The Crimes Code provides in relevant part:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

* * *

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.

18 Pa.C.S.A. § 3701(a)(1)(iv). "Thus, a conviction for robbery pursuant to subsection 3701(a)(1)(iv) requires the Commonwealth to establish that a defendant inflicted bodily injury upon another, or intentionally put him (or her) in fear of immediate bodily injury, while in the course of committing a theft." Commonwealth v. Jenkins, 96 A.3d 1055, 1061 (Pa. Super. 2014) (citation and quotation marks omitted).

The trial court addressed Appellant's challenge to the sufficiency of the evidence as follows:

[The victim] testified that during the robbery he felt

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