J-S54001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

SHANE BERNARD VITKA, JR.,

                         Appellant                 No. 1985 WDA 2014


     Appeal from the Judgment of Sentence Entered October 28, 2014
             In the Court of Common Pleas of Venango County
           Criminal Division at No(s): CP-61-CR-0000262-2014


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 24, 2016

      Appellant, Shane Bernard Vitka, Jr., appeals from the judgment of

sentence of 5 to 15 years’ incarceration, imposed after a jury convicted him

of robbery and related offenses.     Appellant challenges the legality of his

sentence, as well as the sufficiency of the evidence to sustain his robbery

conviction. We affirm.

      The trial court summarized the evidence presented at Appellant’s trial,

as follows:

            During the trial, Andy Chelcher, the victim, testified that
      on November 2, 2013, he was walking home at approximately
      2:00 a.m. Prior to walking home, Mr. Chelcher was attending
      the Country Fair. After leaving the fair, a red truck approached
      Mr. Chelcher. The red truck continued toward Mr. Chelcher and
      forced him “off the curb.” The passenger, later identified as
      [Appellant], jumped out of the truck, and Mr. Chelcher saw the
      [Appellant] with a gun. Mr. Chelcher testified that he attempted
      to run; however, he tripped. [Appellant] …, now standing over
      Mr. Chelcher, put the gun to the victim’s face and said he was
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       going to kill him.    Next, [Appellant] demanded [that] Mr.
       Chelcher give him everything he had on his person.            Mr.
       Chelcher complied and surrendered his wallet and pocket knife.
       [Appellant] proceeded to reenter the red truck and [it] departed.

             [The jury] also heard testimony from Dusty Perry, the
       driver of the red truck. On the night of the robbery, November
       2, 2013, Mr. Perry and [Appellant] agreed to rob somebody with
       a gun. During the trial, Mr. Perry described the events of the
       robbery, specifically [Appellant’s] jumping out of the car, chasing
       after Mr. Chelcher, and reentering the vehicle with [the] gun.
       Mr. Perry also testified that, directly after the robbery, he saw
       [Appellant] with Andy Chelcher’s wallet and pocket knife.

Trial Court Opinion (TCO), 8/27/15, at 6 (citations to the record omitted).

       Based on this evidence, the jury convicted Appellant of robbery (threat

of immediate serious bodily injury), 18 Pa.C.S. § 3701(a)(1)(ii); conspiracy

to commit robbery, 18 Pa.C.S. § 903; robbery (taking property from another

by force), 18 Pa.C.S. § 3701(a)(1)(v); possession of a weapon, 18 Pa.C.S.

§ 907(b); and theft by unlawful taking, 18 Pa.C.S. § 3921(a). Pertinent to

this appeal, Appellant was found not guilty of simple assault, 18 Pa.C.S. §

2701(a)(3). On October 28, 2014, Appellant was sentenced to an aggregate

term of 5 to 15 years’ imprisonment.

       Appellant filed a timely notice of appeal on November 25, 2014.1

Appellant also timely complied with the trial court’s order to file a Pa.R.A.P.




____________________________________________


1
  The disposition of Appellant’s appeal was delayed due to this Court’s not
receiving the certified record from the trial court until March of 2016.




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1925(b) concise statement of errors complained of on appeal.         Herein,

Appellant presents two issues for our review:

      1. Whether the court erred as a matter of law or abused its
      discretion when the court made a finding that [Appellant] used a
      deadly weapon to enhance the sentence, when the jury made no
      finding that [Appellant] used a deadly weapon nor was a
      question[] posed to the jury [on] whether a deadly weapon was
      used.

      2. Whether there was sufficient evidence to convict [Appellant]
      of robbery when the evidence showed no assault on the victim.

Appellant’s Brief at 5.

      Appellant first contends that his sentence is illegal because the court

applied the Deadly Weapon Enhancement (DWE), despite that the jury did

not make a determination that Appellant possessed a deadly weapon, thus

violating the rules set forth in Alleyne v. United States, 133 S.Ct. 2151

(2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

      We disagree. In Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.

Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014), this Court

explained that, “[i]n both [Alleyne and Apprendi,] the Supreme Court

determined that certain sentencing factors were considered elements of the

underlying crime, and thus, to comply with the dictates of the Sixth

Amendment, [those sentencing factors] must be submitted to the jury and

proven beyond a reasonable doubt instead [of] being determined by the

sentencing judge.” Buterbaugh, 91 A.3d at 1270 n.10. The Buterbaugh

panel then explained that the rules announced in Alleyne and Apprendi are

irrelevant to a sentencing court’s application of the DWE:

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       Alleyne and Apprendi dealt with factors that either increased
       the mandatory minimum sentence or increased the prescribed
       sentencing range beyond the statutory maximum, respectively.
       Our case[, in which the court applied the DWE,] does not involve
       either situation; instead, we are dealing with a sentencing
       enhancement. If the enhancement applies, the sentencing court
       is required to raise the standard guideline range; however, the
       court retains the discretion to sentence outside the guideline
       range. Therefore, neither of the situations addressed in Alleyne
       and Apprendi are implicated.

Buterbaugh, 91 A.3d at 1270 n.10.

       Appellant cursorily argues that this Court is not bound to follow

Buterbaugh’s reasoning because the above-quoted language was set forth

in a footnote and was not pertinent to the “issue at hand” in that case.

Appellant’s Brief at 10. While we agree with Appellant,2 we nevertheless find

the Buterbaugh panel’s rationale persuasive and convincing. Therefore, we

conclude that the trial court’s application of the DWE did not violate Alleyne

or Apprendi, and did not render Appellant’s sentence illegal.

       In Appellant’s second issue, he argues that the evidence was

insufficient to support his robbery conviction.
             In reviewing a sufficiency of the evidence claim, we must
       determine whether the evidence admitted at trial, as well as all
       reasonable inferences drawn therefrom, when viewed in the light
       most favorable to the verdict winner, are sufficient to support all
       elements of the offense. Commonwealth v. Moreno, 14 A.3d
       133 (Pa. Super. 2011). Additionally, we may not reweigh the
       evidence or substitute our own judgment for that of the fact
       finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
____________________________________________


2
  See Hunsberger v. Bender, 180 A.2d 4, 6 (Pa. 1962) (finding that a
statement in a prior opinion, which clearly was not decisional but merely
dicta, is not binding precedent).



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       2009). The evidence may be entirely circumstantial as long as it
       links the accused to the crime beyond a reasonable doubt.
       Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

       Appellant challenges his conviction for robbery, as defined by 18

Pa.C.S. § 3701(a)(1)(ii), which states that “[a] person is guilty of robbery if,

in the course of committing a theft, he: … threatens another with or

intentionally puts him in fear of immediate serious bodily injury[.]”

Appellant contends that because the jury acquitted him of simple assault,

there could be “no robbery since there was no evidence of threat or assault

from … [A]ppellant….” Appellant’s Brief at 11.

       Again, we disagree with Appellant. Our Supreme Court has held that

“an acquittal cannot be interpreted as a specific finding in relation to some of

the evidence, and that even where two verdicts are logically inconsistent,

such inconsistency alone cannot be grounds for a new trial or for reversal.”

Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012).               Instead, a

conviction is “allowed to stand so long as the evidence is sufficient to

support [it].” Id. at 1208 (citations omitted). Here, Appellant’s threatening

to kill Mr. Chelcher while placing a gun to his face reasonably placed Mr.

Chelcher in fear of “immediate serious bodily injury” so as to satisfy that

aspect of section 3701(a)(1)(ii).3         See Commonwealth v. Hopkins, 747
____________________________________________


3
  We note that the gun Appellant used during the robbery was a “BB gun
revolver.” N.T. Trial, 10/21/14, at 17. However, the Commonwealth’s
evidence demonstrated that the gun closely resembled an actual firearm.
(Footnote Continued Next Page)


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A.2d 910, 914–15 (Pa. Super. 2000) (stating “[t]he threat posed by the

appearance of a firearm is calculated to inflict fear of deadly injury, not

merely fear of ‘serious bodily injury[,]’ and thus, the “factfinder is entitled to

infer that a victim was in mortal fear when a defendant visibly brandished a

firearm”).    Accordingly, Appellant’s challenge to the sufficiency of the

evidence is meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




                       _______________________
(Footnote Continued)

See id. at 6 (Mr. Chelcher’s testifying that the gun looked like a “[b]lack
handgun”); id. at 62 (Oil City Police Officer Robert Culp’s testifying that the
BB gun was “modeled after” a “.44 Magnum” and “look[ed] [more] like an
actual firearm” than any other “pellet pistol” the officer had previously
seen). Additionally, Appellant does not argue that his use of a BB gun has
any implication on the court’s application of the DWE, or on the sufficiency of
the evidence to support his robbery conviction.



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