J-S02011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

VLADIMIR CORREA-AYALA,

                         Appellant                 No. 918 EDA 2015


           Appeal from the Judgment of Sentence March 6, 2015
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0001506-2014


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED MARCH 15, 2016

      Appellant, Vladimir Correa-Ayala, appeals from the judgment of

sentence entered following his conviction of three counts of robbery and one

count of tampering with physical evidence. We affirm.

      This case involves three robberies that took place on the morning of

March 7, 2014, near the Pennsylvania Department of Transportation (“Penn

DOT”) building in Allentown, Pennsylvania. The trial court summarized the

facts of the three robberies as follows:

            At approximately 6:30 a.m. on March 7, 2014, Kimberly
      Bubbenmoyer was walking from her car parked in a parking deck
      to her place of employment at the [PennDOT building] located at
      10th and Hamilton Streets, Allentown, Lehigh County,
      Pennsylvania. As she traversed the 900 block of Maple Street,
      approximately a block and a half away from the Penn DOT
      building, she noticed a male emerge from behind a snow bank
      and begin to walk in front of her. He then turned left down a
      side alley perpendicular to Maple Street. As Ms. Bubbenmoyer
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     walked past the entrance to the alley, the same male came out
     of the alleyway. Ms. Bubbenmoyer next remembered being
     pushed to the ground forcefully. While on the ground, the male
     pointed a long knife with a 12 to 14 inch blade at her while
     standing over her. Ms. Bubbenmoyer heard the male repeating
     the same word in Spanish, though she could not understand it.

           Ms. Bubbenmoyer, afraid that the man would stab her and
     hoping that she could appease him, put her purse to the side.
     She did so and watched as the male took the purse. The male
     remained standing over her and was motioning with his hands
     for her to get up from the ground and to leave the area. The
     entire incident lasted three to four minutes. She sustained a
     sprained ankle and bone contusions on her lower back as a
     result of the incident.

           Ms. Bubbenmoyer went directly to the Allentown Police
     Department Substation located at 10th and Hamilton Streets,
     Allentown, Lehigh County, Pennsylvania. Although the lighting
     was not good at that time of morning, she described the
     assailant to the police as wearing gray sweatpants, a black
     baseball cap and had a black hoodie sweatshirt pulled around his
     face so that she could only see his eye area. She also told the
     police that along with some personal items such as identification
     cards, credit cards, a checkbook and hygiene products, she had
     a handgun in her purse.

            At approximately 7:20 a.m. the same day, Bernadette
     Taylor had parked her car in the parking garage and was walking
     towards the Penn DOT building to go to work while talking on her
     cellular telephone. As she walked down the 900 block of Maple
     Street, she glanced down an alley located near the residence at
     954 Maple Street. She saw a man wearing a red sweatshirt
     pointing a gun at her and motioning for her to come into the
     alley. The man’s face was covered with a black hat but for his
     eyes and he was wearing dark pants. She could only see his eye
     area.

           Ms. Taylor refused to go into the alley and yelled for the
     man to get away from her. She was scared that she would be
     shot and ran to the Penn DOT building, approximately a half of a
     block away. As she ran, she glanced behind but no longer saw
     the man. When she arrived at the Penn DOT building, she called


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     9-1-1 and was advised that the police were aware of the
     situation.

           At approximately 7:29 a.m., Adam Stettler was walking
     from the parking garage at 9th and Maple Streets, Allentown,
     Lehigh County, Pennsylvania to work at Penn DOT. The distance
     is approximately one block. Halfway down Maple Street, Mr.
     Stettler noticed a person emerging from the alleyway. The man
     stopped approximately 10 feet in front of Mr. Stettler. Mr.
     Stettler noticed that the man was wearing a bright red hooded
     sweatshirt pulled taut around his face so that only the top of the
     nose to the middle of the forehead was exposed. The man
     began to speak in Spanish and motioned to the alley where he
     had emerged from. Mr. Stettler noticed that the man was
     holding a small, dark-colored pistol, pointed at Mr. Stettler’s
     chest area.

           Believing that the man was attempting to take something
     from him, Mr. Stettler shook his head “no.” The man racked the
     slide on the handgun and Mr. Stettler interpreted the action to
     mean that the man was putting a bullet in the chamber of the
     handgun. Mr. Stettler began to run back towards the garage
     area.

            At that moment, police officers Matthew Diehl and Andrew
     Fegley arrived on scene in Officer Fegley’s marked patrol vehicle.
     Having been alerted to the two prior robberies in the area, the
     officers were patrolling the area. As they approached 10 th and
     Maple Streets, Officer Fegley identified the area of Maple Street
     to Officer Diehl to show him where the robberies had been
     reported to have taken place. As the officers glanced up Maple
     Street, they noticed two males standing in the street. One man
     had his hands down and extended at the sides. The other
     individual was wearing red and looked away from the officers as
     their vehicle came into view.

            Officer Fegley quickly drove on Maple Street towards the
     two individuals. The individual who originally had his arms at his
     sides began to point down the alleyway (Hazel Street). Officer
     Diehl exited the passenger side of the patrol car and ran down
     the alleyway. He caught a glimpse of the individual wearing red,
     but could not find anyone as he got to the rear of the residential
     buildings on the 900 block of Maple Street. After approximately
     15 to 20 seconds, Officer Diehl heard a crashing noise and saw

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        an individual in a red hoodie jump from the fence between 956
        and 954 Maple Street to the adjacent property at 25 South Tenth
        Street.

Trial Court Opinion, 6/8/15, at 1-5. The male, later identified as Appellant,

was apprehended in an apartment at the 25 South Tenth Street property.

        On February 6, 2015, following a jury trial, Appellant was convicted of

three counts of robbery and one count of tampering with physical evidence.

On March 6, 2015, Appellant was sentenced to serve an aggregate sentence

of nine to eighteen years of incarceration.        Appellant timely appealed.

Appellant and the trial court complied with the requirements of Pa.R.A.P.

1925.

        Appellant presents the following issues for our review:

        A.    Was the evidence insufficient to support the verdict of
        robbery for the following reasons: the person who accosted
        Bernadette Taylor and Adam Stettler neither demanded money
        or possessions, nor did he make any gestures which indicated a
        demand for movable property. In order to prove robbery, it
        must be proven beyond a reasonable doubt that [Appellant] was
        attempting to take the movable property of Bernadette Taylor
        and Adam Stettler.

        B.    Was the verdict against the weight of the evidence for the
        following reasons:

              A. Neither Kimberly Bubbenmoyer nor Bernadette
              Taylor could identify [Appellant] as the person who
              accosted them;

              B.   The weapon that was recovered, and the
              recovered stolen items were not found in
              [Appellant’s] possession;

              C.   There was no fingerprint or DNA evidence
              connecting [Appellant] to the crimes;

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            D. The clothing recovered by the police did not
            match the description given by the victims (red and
            gray hoodie vs. red hoodie; black hoodie vs. red
            hoodie; gray sweatpants vs. dark bottoms);

            E.    [Appellant] was arrested in a multi unit
            apartment, but the police did not investigate any
            other apartment for evidence or suspects;

            F. [Appellant] was not breathing heavily, was not
            sweating, and did not have a flushed face when
            arrested, even though the police testified they had
            just been in a foot pursuit with the suspect.

Appellant’s Brief at 4-5 (full capitalization omitted).

      In his first issue, Appellant contends that the evidence was insufficient

to support the verdict for robbery where the Commonwealth failed to prove

beyond a reasonable doubt that Appellant was attempting to take the

movable property of Bernadette Taylor and Adam Stettler. Appellant’s Brief

at 15.   Specifically, Appellant contends that as to Bernadette Taylor, the

evidence reveals that although the man was pointing a gun at her, he “did

not say anything or make any noise[,] nor did he try to take anything or

grab anything from her.” Id. (internal cites omitted). With regard to Adam

Stettler, the man spoke to Mr. Stettler in Spanish, which Mr. Stettler did not

understand.    Id. at 15-16.    Appellant argues that he “did not try to take

anything or grab anything from him.”         Id. at 16.   Accordingly, Appellant

contends that there is no evidence to show a theft or attempted theft from

Bernadette Taylor or Adam Stettler. Id.




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      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.           Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

      Appellant was charged with robbery under 18 Pa.C.S. § 3701(a)(1)(ii),

which provides as follows:

      (a) Offense defined.--

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

                                    ***

                  (ii)   threatens   another     with     or
                  intentionally puts him in fear          of
                  immediate serious bodily injury;




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18 Pa.C.S. § 3701 (a)(1)(ii).     “An act shall be deemed ‘in the course of

committing a theft’ if it occurs in an attempt to commit theft or in flight after

the attempt or commission.” 18 Pa.C.S. § 3701(a)(2). “Theft” is defined as

the unlawful taking of “movable property of another with the intent to

deprive him thereof.” 18 Pa.C.S. § 3921(a).

      Additionally, this Court has explained the following regarding a

conviction under 18 Pa.C.S. § 3701(a)(1)(ii):

      [T]he Commonwealth need not prove a verbal utterance or
      threat to sustain a conviction under subsection 3701(a)(1)(ii). It
      is sufficient if the evidence demonstrates aggressive actions that
      threatened the victim’s safety. For the purposes of subsection
      3701(a)(1)(ii), the proper focus is on the nature of the threat
      posed by an assailant and whether he reasonably placed a victim
      in fear of “immediate serious bodily injury.” The threat posed by
      the appearance of a firearm is calculated to inflict fear of deadly
      injury, not merely fear of “serious bodily injury.” A factfinder is
      entitled to infer that a victim was in mortal fear when a
      defendant visibly brandished a firearm.

Commonwealth v. Hopkins, 747 A.2d 910, 914-915 (Pa. Super. 2000)

(internal citations omitted).

      The trial court provided the following analysis on this claim:

            The jury heard testimony from Ms. Taylor that she was
      approached by an individual wearing a red sweatshirt who
      pointed a gun at her and motioned for her to come into the alley.
      Ms. Taylor testified that she was frightened and began to run
      away. Mr. Stettler testified that a man approached him as he
      walked down Maple Street. When they were approximately 10
      feet away from each other, the individual began to speak to Mr.
      Stettler in Spanish and motion towards the alley nearby. Mr.
      Stettler noticed the man was holding a gun. When the individual
      began to walk closer to the alley where he was directing Mr.
      Stettler, Mr. Stettler held up his hands and refused to go into the


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     alley. At that point, Mr. Stettler heard the individual rack the
     slide of the gun.

           After review of the evidence as it pertains to Ms. Taylor
     and Mr. Stettler, the Court believes that the Commonwealth
     presented sufficient evidence at trial to prove beyond a
     reasonable doubt that the Appellant was attempting to commit a
     theft at the time he approached both Ms. Taylor and Mr. Stettler.
     In the case of Ms. Taylor, the Commonwealth put forth evidence
     that Ms. Taylor was approached and motioned into an alleyway,
     at gunpoint. Although Ms. Taylor stated that the individual did
     not physically grab at her purse or attempt to physically take
     anything from her, we find that the evidence that the individual
     was pointing a gun at her and waving her into a nearby alleyway
     allows a permissible inference that the individual was attempting
     to rob Ms. Taylor.         Clearly frightened, Ms. Taylor ran
     immediately from the scene and reported the incident to the
     police. Taken in conjunction with evidence of the robbery which
     occurred just minutes earlier, we find that the Commonwealth
     presented sufficient evidence at trial to sustain the Robbery
     conviction with respect to Ms. Taylor.

            Likewise, the Commonwealth provided sufficient evidence
     to satisfy the elements of Robbery as charged in Mr. Stettler’s
     case. Mr. Stettler testified that he was approached by an
     individual holding a gun who attempted to waive him into an
     alley. The individual spoke to Mr. Stettler in Spanish, but Mr.
     Stettler was unable to understand him.        When Mr. Stettler
     refused to go into the alley by holding up his hands and saying
     no, the individual racked the slide on the gun. Mr. Stettler
     testified that he did not follow the individual because he was
     terrified of what would occur should he go in the alley as
     directed. He interpreted the individual’s actions as an intention
     to take something from him. When police arrived by chance, Mr.
     Stettler pointed out the individual to them.      Based on the
     evidence and the permissible inferences derived from the
     attendant circumstances, the Commonwealth provided sufficient
     evidence to sustain the conviction for Robbery with respect to
     Mr. Stettler.

Trial Court Opinion, 6/8/15, at 14-16.




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      Here, the evidence aptly summarized by the trial court supports the

conclusion that Appellant’s actions were conducted “in the course of

committing a theft,” as he was attempting to take the property of Ms. Taylor

and/or Mr. Stettler.   As explained in Hopkins, it is unnecessary for the

Commonwealth to prove a verbal utterance or threat by Appellant.          The

evidence demonstrated aggressive actions by Appellant that threatened the

victims’ safety; specifically, pointing a firearm at them and attempting to

force them into an alleyway.         Viewing the evidence in the light most

favorable to the Commonwealth, the evidence indicates that Appellant was

attempting to take something from them.            Moreover, in the course of

committing that theft, Appellant threatened Ms. Taylor and Mr. Stettler with

immediate serious bodily injury by brandishing the firearm. Thus, we agree

with the trial court that the evidence was sufficient to support Appellant’s

convictions of robbery. Appellant’s claim fails.

      In his second issue, Appellant asserts that the verdict was against the

weight of the evidence.     Appellant’s Brief at 16.    Appellant presents the

following bases for this argument:

      [1)] neither Kimberly Bubbenmoyer nor Bernadette Taylor could
      identify [Appellant] as the person who accosted them; [2)] the
      weapon that was recovered, and the recovered stolen items
      were not found in [Appellant’s] possession; [3)] there was no
      fingerprint or DNA evidence connecting [Appellant] to the
      crimes; [4)] the clothing recovered by the police did not match
      the description given by the victims (red and gray hoodie vs. red
      hoodie; black hoodie vs. red hoodie; gray sweatpants vs. dark
      bottoms); [5)] [Appellant] was arrested in a multi unit
      apartment, but the police did not investigate any other

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      apartment for evidence or suspects; and [6)] [Appellant] was
      not breathing heavily, was not sweating, and did not have a
      flushed face when arrested, even though the police testified they
      had just been in a foot pursuit with the suspect.

Id. at 16-17 (full capitalization omitted).

      With respect to a weight claim, we apply the following standards:

             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. Thus, the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. A trial judge
      must do more than reassess the credibility of the witnesses and
      allege that he would not have assented to the verdict if he were
      a juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,

footnote, and internal quotation marks omitted). “An appellate court cannot

substitute its judgment for that of the finder of fact.    Thus, we may only

reverse the lower court’s verdict if it is so contrary to the evidence as to

shock one’s sense of justice.” Commonwealth v. Serrano, 61 A.3d 279,

289 (Pa. Super. 2013).

      In addressing Appellant’s weight of the evidence claim, the trial court

provided the following explanation supporting its determination that the

verdict was not against the weight of the evidence:

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            Viewing the evidence presented at trial, the Court has
     determined that the jury’s verdict is not so contrary to the
     evidence presented that a new trial is necessary. The jury was
     free to evaluate the evidence presented by the Commonwealth
     and give what importance it wished to each fact presented.
     Although the evidence alluded to in his Statement of Matters
     Complained of on Appeal could have been relied on by the Jury
     to establish reasonable doubt as to the Appellant’s participation
     in the crimes charged, we believe that the additional evidence
     which was provided at trial through testimony allows this Court
     to find that the Jury’s verdict did not so “shock one’s sense of
     justice” that a new trial is necessary.

            Specifically, we find that “evidence of identification need
     not be positive and certain to sustain a conviction. Although
     common items of clothing and general physical characteristics
     are usually insufficient to support a conviction, such evidence
     can be used as other circumstances to establish the identity of a
     perpetrator.”      Commonwealth v. Orr, 38 A.3d 868, 873
     (Pa.Super. 2011)(internal citations omitted).         Mr. Stettler
     testified that an individual stepped out from an alleyway, directly
     in front of him. He stated that the individual was approximately
     10 feet away from him and was wearing a red hooded sweatshirt
     which covered much of his face, other than the area between the
     top of his nose to the middle of his forehead. The individual
     spoke to Mr. Stettler, though it was in Spanish and Mr. Stettler
     was unsure of exactly what the individual was saying. After
     several seconds of interaction with the individual, he noticed
     that the individual had a small, dark-colored pistol.          The
     individual waved Mr. Stettler into an alley, but Mr. Stettler
     refused to go, communicating to the individual by saying no and
     waving his hands. Mr. Stettler saw the weapon pointed at his
     chest and heard the slide on the pistol become engaged.
     Fearing being shot, Mr. Stettler fled the scene. Approximately an
     hour or two later, police accompanied Mr. Stettler to an open
     parking lot area and brought the Appellant out of the apartment
     for his view. Mr. Stettler identified the Appellant as the person
     he had the encounter in the alleyway with. He stated that he
     recognized the Appellant’s defined brow line and the way his
     eyes were set into his head. Furthermore, Mr. Stettler identified
     the Appellant as the individual he encountered in the alley at the
     preliminary hearing and at trial.




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             The remaining averments in the Statement of Matters
      Complained of on Appeal, while demonstrating discrepancies in
      the testimony, do not require that a new trial take place.
      Although Ms. Bubbenmoyer and Ms. Taylor were unable to
      identify the Appellant as the individual that they encountered,
      they provided consistent evidence that the individual spoke
      Spanish. Ms. Bubbenmoyer further stated that she believed the
      individual to have been “Spanish” as he had darker skin that she
      could see around his eye areas. She also testified that her purse
      was taken and that in that purse was a .32 caliber pistol. Ms.
      Taylor testified that the individual she encountered had a red
      sweatshirt on and that he had a gun. The Commonwealth also
      provided evidence that when the police arrived at the apartment,
      they found the Appellant lying in bed, draped in a red hooded
      sweatshirt, next to the left companion sandal of the sandal found
      embedded in the fence where Officer Diehl observed the red-
      hooded sweatshirt wearing individual flee after a foot pursuit.
      Additionally, Ms. Bubbenmoyer’s gun (which was stolen during
      the course of the incident involving her) was located in a
      dumbwaiter shaft accessible by occupants of the apartment,
      including the Appellant, via a specialized tool located in a toolbox
      found in the first floor apartment. Further, a bullet matching Ms.
      Bubbenmoyer’s gun was located between the mattress and box
      spring directly under where the Appellant was sleeping.

Trial Court Opinion, 6/8/15, at 11-13.

      The trial court’s summation of the evidence at trial is supported by the

evidence of record. Moreover, the jury, sitting as the finder of fact, was free

to believe all, part, or none of the evidence against Appellant, as was its

right. The jury weighed the evidence and concluded Appellant perpetrated

the crimes in question. This determination is not so contrary to the evidence

as to shock one’s sense of justice.      We decline Appellant’s invitation to

assume the role of fact finder and reweigh the evidence.       Accordingly, we

conclude that the trial court did not abuse its discretion in determining that




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Appellant’s weight of the evidence claim lacked merit. Thus, this claim fails

to provide Appellant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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