J-S72017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOSEPH JACKSON                           :
                                          :
                    Appellant             :   No. 303 MDA 2018

         Appeal from the Judgment of Sentence December 18, 2017
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0002027-2017


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 24, 2019

      Appellant, Joseph Jackson, appeals from the judgment of sentence

entered on December 18, 2017, in the York County Court of Common Pleas.

We affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

            On February 7, 2017, at approximately 9:28 a.m., the West
      Manchester Township Police Department was dispatched to Taco
      Bell located at 2189 White Street, Manchester Township, in
      response to a reported armed robbery. Upon arrival, the shift
      manager, Lisa Ericson, reported to officers that a man, who had
      been lurking in the parking lot, confronted her at her vehicle as
      she was carrying a Citizens Bank deposit bag, grabbed her vehicle
      door, and told her to start the ignition of her vehicle or he would
      shoot her with a gun. Ms. Ericson complied with the man’s demand
      to start her car then she grabbed the deposit bag from the front
      passenger seat before exiting her vehicle; however, the man
      directed Ms. Ericson to leave the deposit bag on the seat. She left
      the deposit bag on the seat, exited her vehicle, and went back
      inside of Taco Bell, leaving the man in the driver’s seat of her
J-S72017-18


        vehicle. Once back inside of Taco Bell, she immediately sounded
        the alarm, called 911 emergency, and reported the incident to a
        co-worker.

              Upon Sergeant Jeffrey S. Snell’s arrival to Taco Bell, Ms.
        Ericson provided the description that her assailant was a light-
        skinned black male, approximately 5’6” in height who was wearing
        a green jacket, blue jeans, a black beanie and sunglasses.
        Responding officers from York City converged on the area and
        after a brief foot pursuit, located [Appellant] hiding amongst
        construction equipment near the northeast corner of Rt. 74 and
        Rt. 30. Officers transported [Appellant] to Taco Bell at which time
        Ms. Ericson positively identified him as the man who robbed her
        of the deposit bag.

              York County Assistant Public Defender Eric W. White,
        Esquire, represented [Appellant] during trial proceedings.
        Following a jury trial on November 2, 2017, a jury unanimously
        convicted [Appellant] of Count 1 (Robbery) and Count 3
        (Terroristic Threats) of the Criminal Information.[1] The jury
        acquitted [Appellant] of Count 2 (Criminal Attempt of Robbery of
        a Motor Vehicle). On December 18, 2017, [Appellant] was
        sentenced to a term of ten (10) to twenty (20) years of
        confinement for Count 1 and a term of one (1) to two (2) years of
        confinement for Count 3, to run consecutively to Count 1, for an
        aggregate sentence of eleven (11) to twenty-two (22) years.

Trial Court Opinion, 6/5/18, at 2-4.

        Appellant filed a timely post-sentence motion on December 28, 2017,

that the trial court denied on January 17, 2018. This timely appeal followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.          In this

appeal, Appellant appears to raise two issues.2

____________________________________________


1   18 Pa.C.S. §§ 3701(a)(1)(ii) and 2706(a)(1), respectively.

2 We note with disapproval Appellant’s conglomeration of issues. In his
statement of questions involved, Appellant makes identical claims of alleged



                                           -2-
J-S72017-18


       In Appellant’s first issue, he challenges the sufficiency of the evidence.

In reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). “[T]he facts

and circumstances established by the Commonwealth need not preclude every

possibility of innocence.” Commonwealth v. Colon–Plaza, 136 A.3d 521,

525–526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson–

Dewar, 829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of

the fact-finder to determine the weight to be accorded to each witness’s

testimony and to believe all, part, or none of the evidence. Commonwealth

v. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015). The Commonwealth

may sustain its burden of proving every element of the crime by means of

wholly circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399,

409 (Pa. Super. 2016). Moreover, as an appellate court, we may not re-weigh



____________________________________________


error in his first and second issues; he merely prefaces the first issue with a
challenge to the sufficiency of the evidence and prefaces the second with a
challenge to the weight of the evidence. Appellant’s Brief at 4. Thus,
Appellant has left it to this Court to determine which portions of the issues
challenge the evidence’s weight and which portions concern sufficiency. We
could find waiver on this basis. Commonwealth v. Garland, 63 A.3d 339,
342 (Pa. Super. 2013); Pa.R.A.P. 2116(a). However, as we believe we are
able to discern the distinct arguments Appellant is making, we decline to find
waiver.

                                           -3-
J-S72017-18


the evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

      Appellant avers that the evidence was insufficient to prove the elements

of robbery and terroristic threats. Appellant’s Brief at 9-11. However, in his

argument in support of this claim of error, Appellant cites to the notes of

testimony where he testified that he did not threaten the victim with a gun,

and he points to the Commonwealth’s witness, Jordan Crone, who stated that

the victim did not mention a threat. These issues present a challenge to the

credibility of witnesses, and they are issues related to the weight of the

evidence and not its sufficiency. See Commonwealth v. Gibbs, 981 A.2d

274, 281–82 (Pa. Super. 2009) (An argument regarding the credibility of a

witness’s testimony “goes to the weight of the evidence, not the sufficiency of

the evidence.”). Accordingly, we will address these claims in our disposition

of Appellant’s second issue challenging the weight of the evidence.

      The remaining portion of Appellant’s challenge to the sufficiency of the

evidence is his assertion that, because no gun was recovered, the evidence

was insufficient to convict him of robbery.    Appellant’s Brief at 11.   After

review, we conclude that Appellant’s argument is meritless.

      The crime of robbery for which Appellant stands convicted is defined, in

relevant, part as follows: “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[.]”     18 Pa.C.S. § 3701(a)(1)(ii).


                                     -4-
J-S72017-18


Although the victim in this matter averred that Appellant threatened her with

a firearm, possession of firearm is not an element of the crime and recovery

of a firearm was not necessary for a conviction.     See Commonwealth v.

Jannett, 58 A.3d 818, 821-822 (Pa. Super. 2012) (“[E]vidence is sufficient

to convict a defendant of robbery … ‘if the evidence demonstrates aggressive

actions that threatened the victim’s safety.’”); see also Commonwealth v.

Robinson, 817 A.2d 1153, 1161-1162 (Pa. Super. 2003) (holding that where

the victim testified her attackers brandished handguns, but where no handgun

was discovered on the appellant’s person after the robbery, the victim’s

testimony alone was sufficient to establish possession of a firearm because

the “[a]ppellant could have easily discarded the gun immediately after the

robbery had been effectuated”).

      The victim herein testified that that when she entered her Volkswagen

Rabbit with a bank bag to make a deposit for her employer, Appellant

approached her car. N.T., 11/1/17, at 80-84. Appellant grabbed the window

on the door preventing the victim from closing it, ordered her to start the car,

directed her to leave the bank bag, and placed her in fear of immediate serious

bodily injury by stating that he had a gun and threatening to shoot her if she

did not comply. Id. at 82-84.

      After review, we conclude that the victim’s testimony was sufficient to

prove that in the course of committing a theft, Appellant threatened the victim

and intentionally put her in fear of immediate serious bodily injury.      This


                                     -5-
J-S72017-18


evidence aptly satisfies every element of the crime of robbery as charged. 18

Pa.C.S. § 3701(a)(1)(ii). Appellant’s first issue on appeal is meritless.

      In his second issue, Appellant assails the weight of the evidence. We

have held that “[a] motion for new trial on the grounds that the verdict is

contrary to the weight of the evidence, concedes that there is sufficient

evidence to sustain the verdict.” Commonwealth v. Rayner, 153 A.3d 1049,

1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000)). Our Supreme Court has described the standard applied to a

weight-of-the-evidence claim as follows:

      The decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Thus, “the function
      of an appellate court on appeal is to review the trial court’s
      exercise of discretion based upon a review of the record, rather
      than to consider de novo the underlying question of the weight of
      the evidence.” An appellate court may not overturn the trial
      court’s decision unless the trial court “palpably abused its
      discretion in ruling on the weight claim.” Further, in reviewing a
      challenge to the weight of the evidence, a verdict will be
      overturned only if it is “so contrary to the evidence as to shock
      one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted).   A trial court’s determination that a verdict was not against the

weight of the evidence is “[o]ne of the least assailable reasons” for denying a

new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super.

2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A

verdict is against the weight of the evidence where “certain facts are so clearly

of greater weight that to ignore them or to give them equal weight with all the


                                      -6-
J-S72017-18


facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.

Super. 2003) (quoting Widmer, 744 A.2d at 751–752)). “[W]e do not reach

the underlying question of whether the verdict was, in fact, against the weight

of the evidence. . . . Instead, this Court determines whether the trial court

abused its discretion in reaching whatever decision it made on the

motion[.]” Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super.

2015) (citation omitted) (emphasis added).

      A challenge to the weight of the evidence must first be raised at the trial

level “(1) orally, on the record, at any time before sentencing; (2) by written

motion at any time before sentencing; or (3) in a post-sentence motion.”

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). In the case

at bar, Appellant preserved his challenge to the weight of the evidence by

raising the issue in his December 28, 2017 post-sentence motion.

      In Appellant’s challenge to the weight of the evidence, he avers that his

testimony established that he did not have a gun during the robbery, and

Commonwealth witness Jordan Crone testified that the victim never

complained of a threat from Appellant.       Appellant’s Brief at 14-15.     We

conclude that these challenges to the weight of the evidence are meritless.

      As noted above, there was testimony establishing that Appellant

threatened to shoot the victim, took her bank bag, and placed the victim in

fear of immediate serious bodily injury.     Appellant’s argument is that the

testimony supporting his version of events should prevail. However, that is


                                      -7-
J-S72017-18


not the standard. Appellant is merely asking us to credit his account of the

facts and reweigh the evidence in his favor. This Court will not substitute our

judgment for that of the factfinder, as the jury is free to believe some, all, or

none of the evidence presented and to determine the credibility of the

witnesses at trial. Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.

Super. 2017) (citation omitted). Here, the jury chose to credit the victim’s

testimony, as it was permitted to do. Id. After review, there is nothing about

the trial court’s denial of Appellant’s post-sentence motion that allows us to

conclude that there was any abuse of discretion.        Accordingly, we affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/24/2019




                                      -8-
