Commonwealth v. Johnson

J-S77005-17

2018 PA Super 40

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KHAFRE RAHEEM JOHNSON,

Appellant No. 1128 MDA 2017

Appeal from the Judgment of Sentence Entered June 26, 2017

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000147-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.: FILED FEBRUARY 22, 2018

Appellant, Khafre Raheem Johnson, appeals from the judgment of

sentence of an aggregate term of 6-12 years’ incarceration, imposed

following his conviction for robbery, conspiracy, and related offenses.

Appellant challenges the sufficiency of the Commonwealth’s evidence

supporting his identification as the perpetrator of these crimes. After careful

review, we affirm.

The trial court summarized the facts adduced at trial as follows:

Three witnesses testified in this case. First, the victim Kory

Filson testified.3 He testified that at 10:30 p.m. on December 2,

2015, he was walking to a gas station in the area of Jackson

Street, Sunshine Alley, and Mount Rose Avenue. He described

the area as well[ ]lit by street[]lights and a garage light. While

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* Former Justice specially assigned to the Superior Court.

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Filson was walking, … Appellant and one other man approached

him from behind.

3 Mr. Filson did have a previous unsworn falsification

conviction in 2013.

Filson knew … Appellant before that night because he had

attended middle school with … Appellant's older brother and

because … Appellant was one or two classes behind Filson. In

fact, Filson had almost instantly recognized … Appellant when he

and the other man approached him.

The other man grabbed Filson from behind, and Appellant

stood in front of Filson. Appellant pulled out a handgun and told

Filson "to empty [Filson's] pockets."

During this incident, Appellant pointed the gun at Filson's

midsection. Then, Appellant and the other man went through

Filson's pockets and took all of the pockets' contents. For

example, they took his wallet, cell phone, pocket[ ]knife, $100 in

cash, credit cards, and a prescription. During the altercation,

Filson had feared for his life.

In fact, during the altercation, Filson said Appellant's name

and asked Appellant if he was serious, to which … Appellant

responded[,] "he was dead serious." Afterwards, the two men

ran down an alleyway, and Filson went several blocks to his

home, where he called the police with a second cell phone that

he had at home.

Officer Richard Morris ("Officer Morris") testified next. At the

time, Officer Morris was a patrolman for Spring Garden

Township, and he was working from 7:00 p.m. until 3:00 a.m.

that night. At about 10:45 p.m., Officer Morris was dispatched

for a robbery, and he met with Filson at South Albermarle

Street.

That night, Filson walked Officer Morris through what had

happened. For example, he took Officer Morris to the 700 block

of Sunshine Alley, just North of Jackson Street, which is where

Filson told the officer [that] the robbery occurred. Officer Morris

described the lighting in that vicinity as "very good for an alley….

It's a residential area, it's densely residential, a lot of ambient

lighting from the homes. I would say in an alley with the light

being what it was, looking at your face from here and there, I'd

have no problem identifying you…." During his testimony,

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Officer Morris noted that he had met Filson before. Further, he

explained that while Filson was normally an energetic and

talkative person, his personality that night was "very somber,

downtrodden, [and] he appeared scared to [the officer], beaten

down, if you will."

Lastly, Appellant testified. Appellant stated that he did not

know Filson, and that while he was in the middle school Filson

referred to, he did not attend the high school that Filson

described. Appellant stated he did not know where he was that

night specifically, but he was not in the area that the robbery

occurred. He pointed out that he lived on the other side of town

and did not have any reason to be in Spring Garden Township or

that part of town.24

24 During his testimony, Appellant acknowledged that he

was adjudicated in 2013 for retail theft and pled guilty to

theft by unlawful taking. He also acknowledged that in

2012 he pled guilty to receiving stolen property. These

convictions were pointed out for crimen falsi purposes only

during the trial.

Trial Court Opinion (“TCO”), 9/1/17, 2-6 (some footnotes omitted).

Police arrested Appellant on September 2, 2016. The Commonwealth

charged him with two counts of robbery, 18 Pa.C.S. § 3701(a)(1)(ii) and (iv)

(counts 1 & 3); one count of conspiracy to commit robbery, 18 Pa.C.S. § 903

(count 2); one count of theft by unlawful taking, 18 Pa.C.S. § 3921(a)

(count 4); one count of receiving stolen property, 18 Pa.C.S. § 3925(a)

(count 5); and one count of possession of firearm prohibited, 18 Pa.C.S. §

6105(a)(1) (count 6). Appellant proceeded to a non-jury trial on May 17,

2017. That same day, the trial court found him guilty on all counts except

for the firearm offense. On June 26, 2017, the trial court sentenced

Appellant to 6-12 years’ incarceration at count 1, and a concurrent term of

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5-10 years’ incarceration at count 2. The court merged the remaining

counts for sentencing purposes.

On July 5, 2017, Appellant filed a timely post-sentence motion, in

which he sought a motion for judgment of acquittal on sufficiency grounds,

and a motion for a new trial on weight-of-the-evidence grounds. The trial

court denied Appellant’s post-sentence motion on July 11, 2017. Appellant

filed a timely notice of appeal on July 18, 2017. He filed a timely, court-

ordered Pa.R.A.P. 1925(b) statement on August 8, 2017. The trial court

issued its Rule 1925(a) opinion on September 1, 2017.

Appellant now presents the following questions for our review:

I. Whether the Commonwealth failed to present sufficient

evidence to convict Appellant of robbery when the

Commonwealth only presented the unsubstantiated

allegation of the alleged victim without any independent

police investigation that indicated Appellant’s involvement

in any crime?

II. Whether the Commonwealth failed to present sufficient

evidence to convict Appellant of criminal conspiracy to

commit robbery when the Commonwealth only presented

the unsubstantiated allegation by the victim without any

independent investigation by the police indicating that

Appellant agreed with any other person to commit any

crime[?]

Appellant’s Brief at 4.

Both of Appellant’s claims concern the sufficiency of the evidence, for

which our scope and standard of review are well settled:

A claim challenging the sufficiency of the evidence is a

question of law. Evidence will be deemed sufficient to support

the verdict when it establishes each material element of the

crime charged and the commission thereof by the accused,

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beyond a reasonable doubt. Where the evidence offered to

support the verdict is in contradiction to the physical facts, in

contravention to human experience and the laws of nature, then

the evidence is insufficient as a matter of law. When reviewing a

sufficiency claim[,] the court is required to view the evidence in

the light most favorable to the verdict winner giving the

prosecution the benefit of all reasonable inferences to be drawn

from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

Appellant asserts that there was insufficient evidence supporting his

identity as the perpetrator of the robbery committed against the victim.

Appellant essentially argues that the victim’s testimony could not establish,

by itself, his identity as the perpetrator of the robbery. This argument has

no support in existing case law.

A victim’s in-court testimony, identifying the defendant as the

perpetrator of a crime, is by itself sufficient to establish the identity element

of that crime. See Commonwealth v. Patterson, 940 A.2d 493, 502 (Pa.

Super. 2007) (holding evidence sufficient to establish the identity of the

robber/burglar where “the complainant identified [the a]ppellant, in open

court, as one of the men that entered his home”); Commonwealth v.

Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (“[I]t is settled that a positive

identification by one witness is sufficient for conviction.”). Thus, Appellant’s

attempts to enhance his argument by asserting that the Commonwealth

failed to present any corroborating evidence to support the victim’s in-court

identification testimony does not establish that the identity evidence was

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insufficient. Moreover, Appellant’s assertion that the victim’s testimony was

contradicted by his own is irrelevant to our sufficiency analysis. “Variances

in testimony … go to the credibility of the witnesses and not the sufficiency

of the evidence.” Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa.

1981). Accordingly, we conclude that Appellant’s first claim lacks merit.

Next, Appellant asserts that the evidence was insufficient to establish

the existence of a conspiracy between himself and the other individual who

perpetrated the robbery of the victim. He argues that the only evidence of a

conspiracy came through the victim’s testimony, and that such testimonial

evidence is necessarily insufficient to prove the elements of conspiracy.

Essentially, Appellant rehashes his first sufficiency argument to attack the

explicit elements of conspiracy.

The Crimes Code defines the offense of conspiracy, in pertinent part,

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.

…

(e) Overt act.--No person may be convicted of conspiracy to

commit a crime unless an overt act in pursuance of such

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conspiracy is alleged and proved to have been done by him or by

a person with whom he conspired.

18 Pa.C.S. § 903. Simplified, this requires proof of three elements: 1) an

agreement, 2) shared criminal intent, and 3) an overt act. See

Commonwealth v. Murphy, 795 A.2d 1025, 1037–38 (Pa. Super. 2002).

Moreover,

[t]he essence of a criminal conspiracy is a common

understanding, no matter how it came into being, that a

particular criminal objective be accomplished. Therefore, a

conviction for conspiracy requires proof of the existence of a

shared criminal intent. An explicit or formal agreement to

commit crimes can seldom, if ever, be proved and it need not

be, for proof of a criminal partnership is almost invariably

extracted from the circumstances that attend its activities.

Thus, a conspiracy may be inferred where it is demonstrated

that the relation, conduct, or circumstances of the parties, and

the overt acts of the co-conspirators sufficiently prove the

formation of a criminal confederation. 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. 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.

Id. at 1038 (quoting Commonwealth v. Johnson, 719 A.2d 778, 784-85

(Pa. Super. 1998) (en banc)).

Turning to Appellant’s claim, we again reject the notion that a single

witness’s testimony, alone, cannot be sufficient to establish every element of

a criminal offense; it has no basis in constitutional, statutory, or case law.1

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1 Notably, Appellant makes no attempt to present this Court with case law

suggesting otherwise.

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To the contrary, a solitary witness’s testimony may establish every element

of a crime, assuming that it speaks to each element, directly and/or by

rational inference.

As to the content of a victim’s testimony, this Court has repeatedly

indicated that such testimony, if believed by the fact-finder, may be

sufficient to establish all the elements of a sexual offense.

In Commonwealth v. Gabrielson, … 536 A.2d 401 ([Pa.

Super.] 1988), this [C]ourt held that the uncorroborated

testimony of a rape victim, if believed by the jury, is sufficient to

support a rape conviction and no medical testimony is needed to

corroborate a victim's testimony if the testimony was rendered

credible by the jury. See also [Commonwealth v.] Trimble,

[615 A.2d 48, 50 (Pa. Super. 1992)] (where a five-year-old

victim's testimony that defendant placed his “weiner,” penis, in

her “tooter,” vaginal area, established penetration and supported

the rape conviction); see also Commonwealth v. Kunkle, …

623 A.2d 336, 338 ([Pa. Super.] 1993) (holding that

uncorroborated testimony of the sex offense victim may be

sufficient to establish the guilt of the accused); Commonwealth

v. Cody, … 584 A.2d 992 ([Pa. Super.] 1991) (holding that sex

offense victim's testimony alone provided sufficient evidence to

establish defendant's guilt of involuntary deviate sexual

intercourse, indecent assault, and corruption of minors beyond a

reasonable doubt); Commonwealth v. White, … 491 A.2d 252,

258 ([Pa. Super.] 1985); Commonwealth v. Stoner, … 425

A.2d 1145 ([Pa. Super.] 1981) (holding that the uncorroborated

testimony of a 12–year–old victim was sufficient to establish

defendant's guilt in a prosecution for statutory rape, involuntary

deviate sexual intercourse, and corrupting morals of a minor).

Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994).

The Crimes Code specifically expresses this principle in the context of

sexual offenses. See 18 Pa.C.S. § 3106 (“The credibility of a complainant of

an offense under this chapter shall be determined by the same standard as

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is the credibility of a complainant of any other crime. The testimony of a

complainant need not be corroborated in prosecutions under this

chapter. No instructions shall be given cautioning the jury to view the

complainant's testimony in any other way than that in which all

complainants' testimony is viewed.”) (emphasis added). However, this

Court is not aware of any case law suggesting that the principle itself does

not apply across the whole spectrum of criminal offenses. There is no

universal, per se rule that a solitary witness’s testimony is incapable of

providing sufficient evidence of the commission of a crime.

Support for this principle in Pennsylvania case law is not merely

confined to the realm of sexual offenses within the scope of 18 Pa.C.S. §

3106. For instance, despite recognizing the inherent credibility issues that

arise with the testimony of accomplices, our Supreme Court has held that

“guilt or innocence may be predicated on uncorroborated testimony of an

accomplice.” Commonwealth v. Hudson, 414 A.2d 1381, 1385 (Pa.

1980). It would be a strange result if an accomplice to a crime could

render sufficient testimony to convict, without any corroboration, but a

victim of a crime could only render sufficient testimony when a sexual

offense was involved.

Section 3106 became effective in 1976. Nevertheless, the principle

contained therein predated the legislative mandate, suggesting that the

statute merely codified, for a specific category of offenses, an existing legal

maxim that applied more broadly. For instance, in Commonwealth v.

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Kettering, 119 A.2d 580 (Pa. Super. 1956), this Court recognized that “[a]

conviction, from necessity, may rest upon the uncorroborated testimony of

a mere child….” Id. at 581 (emphasis added). While the Kettering Court

went on to caution that a factfinder should treat such testimony with great

scrutiny, nothing in the opinion suggested that, if ultimately believed by the

factfinder, the testimony was patently insufficient because it was

uncorroborated by other evidence, testimonial or otherwise. Although

Kettering did involve sexual misconduct, nothing in that decision suggested

that the rule expressed by the Court was limited to sexual offenses.

This rule was applied outside the context of sex offenses and

accomplice testimony in Commonwealth v. Davis, 132 A.2d 408 (Pa.

Super. 1957). In that case, Charles Hanner, a heroin addict, provided the

only testimony against Davis. He told the jury that Davis had delivered

heroin to him in July of 1954. The substance was “properly identified by his

testimony” as Hanner had testified to “his reaction when it was injected into

his blood stream.” Id. at 409. This Court held that “contrary to [Davis]'s

contention, the uncorroborated testimony of Hanner in this case was

sufficient to support [Davis]'s conviction of the unlawful possession and sale

of narcotics.” id. (relying on Commonwealth v. Aikens, 118 A.2d 205 (Pa.

Super. 1955)).

In Aikens, the defendant was convicted of drug trafficking offenses

under similar circumstances:

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The Commonwealth's case depended upon the testimony

of a drug addict. This witness testified that she had used heroin

daily over a long period of time; that she knew the effect of it;

and that the substance purchased by her from [Aikens] gave her

the effect of heroin. She further testified that she was a drug

addict; and that she was under sentence for the use and

possession of heroin which she had purchased from [Aikens].

The witness also testified that she had known [Aikens] for a

number of years and that [Aikens] gave her heroin from time to

time in 1953 until she became addicted. She began purchasing

heroin from [Aikens] in November, 1953, and thereafter

purchased on the average a bag of heroin a day, including the

months of November and December, 1954.

[Aikens] testified in her own behalf, and denied that she

ever sold, gave or delivered any drugs to the Commonwealth's

witness. [Aikens] claimed that the Commonwealth's witness had

not told the truth about [Aikens] because of an alleged incident

which occurred in the fall of 1953 over a small revolver.

[Aikens] said the witness asked her to hide the gun but she

refused, and that this was the cause of the witness' antagonistic

attitude.

Aikens, 118 A.2d at 206–07.

On appeal, inter alia, Aikens claimed that a drug addict’s

uncorroborated testimony was insufficient to sustain her conviction. The

Aikens Court rejected this claim, indicating that any defects in the

credibility of a witness was “for the determination of the jury or a judge

sitting without a jury.” Id. at 208. The Court then held that: “If the trier of

fact, who sees and hears the witness, is satisfied that the witness was

testifying truthfully, even though a drug addict, then such testimony may be

sufficient to warrant a conviction of a defendant for the sale of drugs.” Id.

Synthesizing these cases, we hold that the uncorroborated testimony

of a single witness is sufficient to sustain a conviction for a criminal offense,

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so long as that testimony can address and, in fact, addresses, every element

of the charged crime. There may be certain instances where particular

elements of certain crimes fall outside the scope of this general rule,2 but no

such elements are involved in the case at hand. Moreover, our holding

should not be understood to affect, whatsoever, the weight a factfinder

assigns to uncorroborated testimony of a solitary witness. Such a

circumstance should be a significant, but not a dispositive factor when

assessing credibility. Our decision today concerns only claims made under

the auspices of a challenge to the sufficiency of such evidence.

Turning back to the particulars of the case at hand, the trial court

indicates that:

Viewed in the light most favorable to the Commonwealth

as verdict winner, there was sufficient evidence to find Appellant

guilty of [c]onspiracy to [c]ommit [r]obbery. Here, overt acts

were committed, for example when Appellant pointed the gun at

[the victim] during the course of a theft and when Appellant and

the other man took the contents of [the victim]'s pockets.

The circumstances of the robbery clearly show that there

was an agreement to commit the robbery based on the

circumstances, including … Appellant's and other man's acts

during the robbery of [the victim]. Again, given all the evidence

and testimony, this [c]ourt found [the victim]'s testimony to be

unbiased and more credible than Appellant's testimony.

Therefore, there was sufficient evidence to find Appellant guilty

of [c]onspiracy to [c]ommit [r]obbery.

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2 We leave it for future decisions to determine which offenses contain

elements that fall outside the general rule.

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TCO at 10. We agree. The victim’s testimony regarding Appellant’s and his

cohort’s behavior during the robbery was sufficient to show a shared intent

and implicit agreement to commit a robbery, as well as multiple overt acts

perpetrated in furtherance of that conspiracy. Accordingly, Appellant’s

second claim also lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2018

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