J-S74017-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
KHALIL R. WHITE,                          :
                                          :
                   Appellant              : No. 110 EDA 2014

             Appeal from the Judgment of Sentence May 14, 2012,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0005013-2011

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 15, 2014

        Khalil R. White (“White”) appeals from the judgment of sentence

entered following his convictions of robbery, theft by unlawful taking and

conspiracy.1 Having found no merit to the issues White raises on appeal, we

affirm.

        The trial court summarized the facts underlying White’s convictions as

follows:

             On October 21, 2010, [White], his cousin Rashieda
             White, Latif Miller and others were inside apartment
             3A at 3147 North 16th Street in Philadelphia. At
             10:45 pm, Rashieda White ordered food from Bravo’s
             Pizza. Mohamed El-Amzali was the delivery driver
             for Bravo [sic] Pizza, who delivered the food to 3147
             North 16th Street. When he arrived at the building,
             El-Amzali called Rashieda White, who answered and
             told him she was coming.            El-Amzali waited
             approximately ten minutes and called her again.


1
    18 Pa.C.S.A. §§ 3701, 3921, 903.


*Retired Senior Judge assigned to the Superior Court.
J-S74017-14


            This time White requested that El-Amzali bring the
            food to the front door of the building. El-Amzali
            exited his vehicle with the food and approached the
            front door of the apartment building.

                  When El-Amzali got to the building’s front door
            to deliver the food, Latif Miller and [White] were
            waiting for him and opened the doors. Miller had a
            gun in his left hand, and [White] covered his face
            with a dark piece of clothing. When the door was
            opened, neither Miller nor [White] said anything to
            El-Amzali. Instead, Miller grabbed the food with his
            right hand and fired one shot at El-Amzali. The
            bullet struck El-Amzali in the stomach, and he
            immediately collapsed. [White] and Miller turned
            and fled down the hallway and into apartment A3.
            [White] and Miller jumped through a rear window
            and fled the building.

                  El-Amzali immediately called the police. After
            [White] and Miller fled the scene, Rashieda White
            and several other girls exited apartment 3A. They
            entered the hallway and told El-Amzali to leave.
            Rashieda White kicked the fired cartridge casing
            down the hallway before she left the scene.

                                    ***

                  Officer Brian Graves was the first police officer
            to arrive on the scene. Officer Graves observed El-
            Amzali rolling on the ground in the hallway and
            noticed that he was shot and bleeding from his
            stomach area. Officer Graves helped El-Amzali into
            an ambulance, which transported him to Temple
            Hospital. El-Amzali received treatment for six days
            in the hospital. He has a large permanent scar from
            approximately midway on his sternum down to just
            below his belly button. … .

Trial Court Opinion, 5/19/14, at 1-3 (citation to notes of testimony omitted).




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      Following a three-day jury trial, White was convicted of the offenses

listed above. He was subsequently sentenced to a total of five to ten years

of incarceration.   White filed a post-sentence motion, which the trial court

denied. This timely appeal follows, in which White presents two issues for

our review.

      In his first issue, White argues that there was insufficient evidence to

support his convictions. We review this issue mindful that,

              [w]hen evaluating a sufficiency claim, our standard is
              whether, viewing all the evidence and reasonable
              inferences in the light most favorable to the
              Commonwealth, the fact[-]finder reasonably could
              have determined that each element of the crime was
              established beyond a reasonable doubt. This Court
              considers all the evidence admitted, without regard to
              any claim that some of the evidence was wrongly
              allowed. We do not weigh the evidence or make
              credibility determinations. Moreover, any doubts
              concerning a defendant's guilt were to be resolved by
              the fact[-]finder unless the evidence was so weak
              and inconclusive that no probability of fact could be
              drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).

      White concedes that there was sufficient evidence to establish that he

was present during the robbery of El-Amzali, but argues that there was no

direct or circumstantial evidence to establish that he participated in the

robbery.   White’s Brief at 11-12.2    White characterizes his convictions as




2
  White expressly forgoes arguing that the evidence was insufficient as to
any particular element of any offense of which he was convicted and argues


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based upon speculation and conjecture, and therefore impermissible. Id. at

13-14. We do not agree.

     The record in the present case contains plentiful evidence that White

was a participant in the robbery of El-Amzali.    At trial, El-Amzali testified

that he was making a delivery to 3147 North 16th Street on the night in

question. N.T., 3/7/12, at 27. When he arrived, he called the woman who

placed the order and she asked him to come into the building. Id. at 28. As

he entered the building to make the delivery, two men were standing in the

hallway and opened the interior door to the apartment building for him. Id.

at 28, 58. The first man was holding a gun in his extended left hand, and

the other man stood just behind him with a cloth covering his face below the

eyes. Id. at 29-30. The man with the gun shot El-Amzali and took the food

from him.    Id. at 31.   Both men then ran into apartment A3, which was

Rashieda’s apartment. Id. at 31, 37. Tina Allen (“Allen”) testified that she

lives in apartment A1.    N.T., 3/6/12, at 19.   At approximately 10:45 that

evening, she heard a gunshot and looked out of her door.           Id.    In a

statement to the police immediately following the incident, Allen stated that

when she looked out of her door, she saw White run into A3, Rashieda’s

apartment.    Id. at 36-37.   Allen stated that she had seen White almost

every day and that she had known him for about ten years at the time. Id.



only that the evidence was insufficient to prove anything other than his mere
presence at the scene of the crime. White’s Brief at 11.


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at 36-37. She identified White in a photo array at the time she gave her

statement to the police. Id. at 38. Additionally, Rashieda admitted that she

called for the delivery of food so that White and Miller could rob the

deliveryman. N.T., 3/7/12, at 141. After the shooting, Miller and White re-

entered Rashieda’s apartment and exited through a window in her

apartment. N.T., 3/7/12, at 8; N.T., 3/6/12, at 20; N.T., 3/7/12, at 31.

     This evidence - most notably, White’s presence with Miller at the

threshold of the building, his efforts to conceal his identity, his immediate

flight with Miller through the window and Rashieda’s admission as to the

conspiracy to rob the deliveryman – is sufficient to support the finding that

White was a participant in the events that occurred on the night in question,

and not merely present at the scene when a crime was committed by others.

     White    relies on the   Pennsylvania   Supreme    Court’s decision in

Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), but this reliance

is misplaced. In Karkaria, the defendant was charged with raping his step-

sister between April and September 1984. At trial, the victim testified that

the defendant assaulted her only when he acted as her babysitter,

beginning in 1981. The victim and the defendant testified, however, that by

April 1984, the defendant was no longer acting as the victim’s babysitter.

There was absolutely no evidence to support a finding that the defendant

assaulted the victim during the period of time upon which the charges were

based.   Accordingly, the Supreme Court concluded that the evidence was



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insufficient to support the verdict.    Karkaria, 625 A.2d at 1171-72.    In

contrast, as recounted above, in this case there is ample evidence to support

the conclusion that White participated in the robbery.    As such, we reject

White’s claim.

     In his second issue, White argues that the verdicts are against the

weight of the evidence.3

           Appellate review of a weight claim is a review of
           the exercise of discretion, not of the underlying
           question of whether the verdict is against the
           weight of the evidence. Because the trial judge
           has had the opportunity to hear and see the
           evidence presented, an appellate court will give the
           gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial
           court's determination that the verdict is against the
           weight of the evidence. One of the least assailable
           reasons for granting or denying a new trial is the
           lower court's conviction that the verdict was or was
           not against the weight of the evidence and that a
           new trial should be granted in the interest of justice.

           This does not mean that the exercise of discretion by
           the trial court in granting or denying a motion for a
           new trial based on a challenge to the weight of the
           evidence is unfettered. In describing the limits of a
           trial court's discretion, we have explained[,] [t]he
           term ‘discretion’ imports the exercise of judgment,
           wisdom and skill so as to reach a dispassionate
           conclusion within the framework of the law, and is
           not exercised for the purpose of giving effect to the
           will of the judge. Discretion must be exercised on the


3
  White preserved this claim for appeal by raising it his post-sentence
motion. See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.
2014) (“[A] weight of the evidence claim must be preserved … in a post-
sentence motion[.] … Failure to properly preserve the claim will result in
waiver.”); Pa.R.Crim.P. 607.


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             foundation of reason, as opposed to prejudice,
             personal motivations, caprice or arbitrary actions.
             Discretion is abused where the course pursued
             represents not merely an error of judgment, but
             where the judgment is manifestly unreasonable or
             where the law is not applied or where the record
             shows that the action is a result of partiality,
             prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the

original) (citations omitted).

      Accordingly, we are mindful that as we review White’s claim, we are

not passing on the underlying question of whether the verdicts were against

the weight of the evidence, but rather we are considering whether the trial

court abused its discretion in denying his motion for a new trial based upon

his claim that the verdict was against the weight of the evidence. We are

focused, therefore, on evidence that the trial court’s ruling is “manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill-will.” Id.

      White fails to appreciate the standard and scope of our review.     He

frames his argument in terms of the jury’s failure to make certain findings,

and does not present any argument as to how he believes the trial court

abused its discretion in denying his post-sentence motion. White directs his

entire argument to the underlying question of whether his convictions are

against the weight of the evidence. As stated above, this is not the question

before us for review.




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      White has failed to provide us with relevant argument relative to our

standard of review, and this Court will not develop an argument on his

behalf.   See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.

2006). In addition, however, our independent review of the record provides

us with ample support for the conclusion that the trial court did not abuse its

discretion in deciding that the verdicts in this case were not against the

weight of the evidence. We therefore find no merit to White’s claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2014




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