J-S08003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
DONTAE THOMAS,                             :
                                           :
                   Appellant               : No. 441 EDA 2014

           Appeal from the Judgment of Sentence January 23, 2014,
                Court of Common Pleas, Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0007761-2012
                        and MC-51-CR-0000625-2012

BEFORE: DONOHUE, WECHT and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED FEBRUARY 18, 2015

        Dontae Thomas (“Thomas”) appeals from the judgment of sentence

entered following his convictions of robbery, burglary, conspiracy and

assault.1 Following our review, we affirm.

        The trial court summarized the facts underlying this appeal as follows:

              On December 30, 2011 at approximately 4:00 P.M.
              on the 6600 block of Kindred Street, victim Milagros
              Cintron and her paramour, victim Asif Yaqoob, were
              inside their home with the front door slightly ajar
              when [Thomas] and co-defendant Hector Vasquez
              entered the home without permission. (N.T.
              10/25/13 p. 21-24, 76-77.) Both victims recognized
              [Thomas] and Mr. Vasquez because they had been
              acquaintances for several years and neither assailant
              had his face covered. (N.T. 10/25/13 p. 28, 39, 78-
              79, 90.) [Thomas] put "the gun on [Ms. Cintron's]
              chest ... right in the middle of the chest" and Ms.
              Cintron experienced some pain. (N.T. 10/25/13 p.


1
    18 Pa.C.S.A. § 3702(a)(1)(ii), 3502, 903, 2701(a).
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            25-26.) [Thomas] proceeded to push Ms. Cintron
            through the living room and up against a wall, and
            then demanded her purse. (N.T. 10/25/13 p. 26-28,
            78, 81-82.) [Thomas] took Ms. Cintron's purse,
            which contained "medication, appointment papers,
            and $140.00 which belonged to both Ms. Cintron and
            Mr. Yaqoob." (N.T. 10/25/13 p. 27-28, 81-82.)

            At the same time, Mr. Vasquez pointed the gun at
            Mr. Yaqoob, pushed Mr. Yaqoob against a wall,
            began hitting Mr. Yaqoob with the alleged gun, and
            was asking for Mr. Yaqoob's wallet. (N.T. 10/25/13
            p. 77-78.) Mr. Yaqoob felt "a little bit" of pain (N.T.
            10/25/13 p. 86). Mr. Yaqoob said, "look everything's
            in the purse; my money's in the purse; take her
            purse; just get out." (N.T. 10/25/13 p. 81.)

            [Thomas] grabbed Ms. Cintron's purse and [he] and
            Mr. Vasquez ran out of the home. (N.T. 10/25/13 p.
            82.) Mr. Yaqoob called 911. While on the phone, Mr.
            Yaqoob observed [Thomas] and Mr. Vasquez get into
            a white Lincoln car, drive a few blocks to a park, exit
            the car, and run into a house on Souder Street. (N.T.
            10/25/13 p. 82-84.)

            Later that evening, Detective Joseph Corrigan
            obtained and executed a search warrant at 6550
            Souder Street. (N.T. 10/28/1 3 p. 80-82.) Outside of
            the home, Detective Corrigan recovered the "black
            purse with keys attached to it" that was later
            identified as the purse stolen from the victims. (N.T.
            10/25/13 p. 36, 41; N.T. 10/28/13 p. 82-83.) Inside
            of the home, Detective Corrigan recovered a "silver
            colored toy-like-revolver type handgun with a black
            handle that "doesn't fire or anything. It's not a real
            firearm. It's like hard plastic." (N.T. 10/28/13 p. 80-
            82, 86.)

            Both victims testified that the firearm recovered from
            the search warrant was not one of the guns used
            against them. (N.T. 10/25/13 p. 42, 87-88.)

Trial Court Opinion, 5/28/14, at 1-2.



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      Thomas was subsequently arrested and charged with twenty-two

counts of a veritable catalog of crimes. Following a jury trial at which

Thomas and Vasquez were tried together, Thomas was convicted only of the

three crimes mentioned above. He filed a post-sentence motion, which the

trial court denied. This timely appeal followed.

      Thomas presents two issues for our review:

            1. Were not the verdicts for [r]obbery, [c]onspiracy
               to [c]omit [r]obbery, [b]urglary and [s]imple
               [a]ssault against the weight of the evidence to
               such a degree as to shock the conscience, such
               that the trial court erred in denying the post-
               sentence motion for a new trial?

            2. Where the jury found [Thomas] [n]ot [g]uilty of
               [p]ossesing an [i]nstrument of a [c]rime and
               made a specific finding as part of the verdict that
               there was no weapon involved, the evidence was
               insufficient to support the verdict of guilty of
               robbery in the first degree.

Thomas’ Brief at 5.2

      The first issue presented argues that Thomas’ convictions were against

the weight of the evidence.

            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


2
  Thomas included a third issue in his statement of questions involved. but
he did not include that issue in his Pa.R.A.P. 1925(b) statement of matters
complained of on appeal. See Thomas’ Brief at 5; Statement of Matters
Complained of on Appeal, 3/18/14. Accordingly, it has been waived for
purposes of appeal. Pa.R.A.P. 1925(b)(4)(vii).


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            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
            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

Thomas’ 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 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




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is “manifestly unreasonable or [that] the law is not applied or [that] the

record shows that the action is a result of partiality, prejudice, bias or ill-

will.” Id.

      Thomas’ argument fails to appreciate our standard and scope of

review. The entire argument is framed in terms of the jury’s determination

that the victims’ testimony was credible.      Thomas does not present any

argument as to how he believes the trial court abused its discretion in

denying his post-sentence motion. He only points to what he considers to

be inconsistencies and irregularities in victims’ testimony and assails the

jury’s credibility determinations and fact finding.   Thomas’ Brief at 11-12.

Thus, his argument is directed 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.

      Thomas has not provided us with appropriate 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, we note that 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 Thomas’

claim.




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      Thomas’ remaining claim assails the sufficiency of the evidence

supporting his conviction of robbery graded as a first-degree felony. When

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.

Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (quoting Commonwealth v.

Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)). When performing this review,

“we may not reweigh the evidence or substitute our own judgment for that

of the fact finder.” Id.

      Thomas argues that because the jury found both him and his co-

defendant not guilty of possession of an instrument of crime, there is

insufficient evidence to support a conviction of first-degree felony robbery.

Thomas’ Brief at 13. Thomas is mistaken. The definitions and gradations of

robbery are found in section 3701 of the Crimes Code. It provides as follows:

            (a) Offense defined.--

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

                  (i) inflicts serious bodily injury upon another;

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

                  (iii) commits or threatens immediately to
                  commit any felony of the first or second
                  degree;



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                 (iv) inflicts bodily injury upon another or
                 threatens another with or intentionally puts
                 him in fear of immediate bodily injury;
                 (v) physically takes or removes property from
                 the person of another by force however slight;
                 or

                 (vi) takes or removes the money of a financial
                 institution without the permission of the
                 financial institution by making a demand of an
                 employee of the financial institution orally or in
                 writing with the intent to deprive the financial
                 institution thereof.

           (2) 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.

           (3) For purposes of this subsection, a “financial
           institution” means a bank, trust company, savings
           trust, credit union or similar institution.

           (b) Grading.—

           (1) Except as provided under paragraph (2), robbery
           under subsection (a)(1)(iv) and (vi) is a felony of the
           second degree; robbery under subsection (a)(1)(v) is
           a felony of the third degree; otherwise, it is a felony
           of the first degree.

           (2) If the object of a robbery under paragraph (1) is
           a controlled substance or designer drug as those
           terms are defined in section 2 of the act of April 14,
           1972 (P.L. 233, No. 64),1 known as The Controlled
           Substance, Drug, Device and Cosmetic Act, robbery
           is a felony of the first degree.

18 Pa.C.S.A. § 3701.




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      Thomas was convicted of robbery under § 3701(a)(1)(ii), which

requires evidence that he “threaten[ed] another with or intentionally put[]

him in fear of immediate serious bodily injury[.]”            18 Pa.C.S.A. §

3701(a)(1)(ii). “Serious bodily injury,” in turn, is defined as “[b]odily injury

which creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” 18 Pa.C.S.A. § 2301.

      The evidence, when considered in the light most favorable to the

Commonwealth, establishes that Thomas pressed a gun against Ms.

Cintron’s chest while repeatedly demanding money. N.T., 10/25/13, at 24-

26, 81. Ms. Cintron testified that she was afraid for her life while Thomas

was doing this to her. Id. at 29. As a result, Ms. Cintron gave Thomas her

purse. Id. at 27. This evidence is sufficient to establish that in the course

of committing a theft, Thomas intentionally put Ms. Cintron in fear of

immediate serious bodily harm, thus satisfying the elements contained in §

3701(a)(1)(ii). Pursuant to § 3701(b)(1), this is a felony of the first degree.

      In his view, if Thomas or Vasquez did not possess a gun, “then what

they did can rise no higher than [r]obbery of the [t]hird [d]egree.” Thomas’

Brief at 13.   Thomas boldly presumes that the jury “did not believe the

testimony of Melogros [sic] Cintron that [Thomas] poked her in the chest

with a gun, nor the testimony of Asif Yaqoob that [Vasquez] hit him on the

head repeatedly with a gun.      Without those facts, the evidence does not



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establish … that the perpetrator[] cause[d], attempt[ed] to cause, or put the

victim in fear of serious bodily injury.”   Id. Contrary to Thomas’ position,

the fact that the jury found Thomas not guilty of possession of an instrument

of crime does not diminish or negate this evidence.      The jury returned an

inconsistent verdict, which our law expressly permits:

            Well-settled Pennsylvania law permits inconsistent
            verdicts, provided sufficient evidence supports the
            conviction. Commonwealth v. Miller, [] 35 A.3d
            1206 ([Pa.] 2012); Commonwealth v. King, 990
            A.2d 1172, 1178 (Pa. Super. 2010), appeal denied,
            53 A.3d 50 ([Pa.] 2012); Commonwealth v. Trill,
            [] 543 A.2d 1106, 1111 ([Pa. Super.] 1988), appeal
            denied, 562 A.2d 826 ([Pa.] 1989). “[I]nconsistent
            verdicts, while often perplexing, are not considered
            mistakes and do not constitute a basis for reversal.”
            Commonwealth v. Rose, 960 A.2d 149, 158 (Pa.
            Super. 2008), appeal denied, 980 A.2d 110 ([Pa.]
            2009) (citation omitted). “An acquittal cannot be
            interpreted as a specific finding in relation to some of
            the evidence.” Miller, [] 35 A.3d at 1213.

Commonwealth v. Houck, 102 A.3d 443, 451 (Pa. Super. 2014); see also

Commonwealth v. Moore, 103 A.3d 1240, 1250 (Pa. 2014) (holding that

conviction of possession of an instrument of crime may be sustained when

defendant has been otherwise acquitted of related offenses involving the use

of that instrument of crime).     As recounted above, there was sufficient

evidence to support the jury’s verdict regarding first-degree felony robbery;

accordingly, this inconsistent verdict does not advance Thomas’ cause.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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