J-S82011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILLIP L. BURNEY                          :
                                               :
                        Appellant              :   No. 2254 EDA 2017

             Appeal from the Judgment of Sentence June 12, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009549-2016


BEFORE:      LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 15, 2019

        Phillip Burney appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his conviction on two

counts each of criminal conspiracy1 (robbery), theft by unlawful taking,2 and

theft by receiving stolen property.3 Upon careful review, we affirm.

        The trial court set forth the facts of this case as follows:

        [Claire] Gothreau testified that on August 14, 2016 at
        approximately 1:00 a.m., she and her friend, Lauren Rowlands,
        were walking on 18th Street south of Fairmount Avenue in
        Philadelphia, when a male grabbed her shoulder from behind and
        spun her around. The male was pointing a long, silver handgun
        at her chest and told her to give him her purse; she complied.
        The male then turned the gun on her friend, and demanded her
____________________________________________


1   18 Pa.C.S. § 903.

2   18 Pa.C.S. § 3921.

3   18 Pa.C.S. § 3925.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     purse; she complied as well. The male turned the gun back on
     Ms. Gothreau, and asked for her phone. She told him that it was
     in her purse. The male then turned, ran to a large white SUV and
     drove away. She described her attacker as an African-American
     male, five-foot eleven-inches tall, 170 pounds, wearing a white
     tank top and shorts. In total, the male took her iPhone and purse,
     which contained her wallet, two credit cards, makeup and keys.

     Immediately after the robbery, a “good Samaritan” approached
     them and asked if they needed help; they said yes. He called the
     police on his phone and handed it to Ms. Gothreau, who explained
     what just happened and provided descriptive information. Within
     two minutes, a police car came down 18th Street, picked them up,
     and transported them to a CVS parking lot approximately five
     blocks away on Fairmount Avenue. There, she observed two
     males, one of whom she positively identified as the male who had
     just robbed her. She then saw police retrieve her and her friend’s
     belongings from the back of the SUV; they positively identified
     their belongings, which were inventoried at the police station
     before being returned to them. Ms. Gothreau testified that the
     entire episode, from the holdup to her positive identifications,
     occurred within a very short time span -- no more than five to ten
     minutes.

     The Commonwealth next called complainant Lauren Rowlands to
     the stand. Ms. Rowlands testified that, on August 14, 2016 at
     approximately 12:45 a.m., she and Clair Gothreau were walking
     home on 18th Street south of Fairmount Avenue when a man
     approached Ms. Gothreau from behind and stood in between the
     two women. She saw Ms. Gothreau hand over her yellow purse,
     and at that point she realized that they were being robbed. Ms.
     Rowlands reached for her phone, but the male pointed the gun at
     her abdomen and demanded her phone and purse; she promptly
     complied.    Her purse contained $85 in cash, a debit card,
     American Express card, an ID, makeup, ear buds and house keys.
     The male turned back to Ms. Gothreau to make sure he had her
     phone as well. He then ran away, at which point she saw a
     gentleman approaching them to render assistance. They used his
     phone to call police, and described what happened “in very vivid
     detail”. Within minutes, a police SUV came barreling down the
     street and the officer asked them to get in the back. He drove
     them to a CVS a few blocks away on Fairmount Avenue, where
     she identified the gunman “easily and quickly.” Her belongings


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     were present at that location and “everything but [her] lip gloss”
     was returned to her.

     The Commonwealth next presented the testimony of Philadelphia
     Police Officer Rasheen Dickerson. Officer Dickerson testified that,
     on August 14, 2016, he and his partner, Officer Holden, were
     working in plain clothes in an unmarked vehicle in the Fairmount
     section of Philadelphia. At approximately 12:45 a.m., they were
     traveling eastbound on Fairmount Avenue, stopped at a traffic
     light at the 24th Street intersection when they observed a black
     male, later identified as Jeremiah Byrd, running westbound toward
     them on Fairmount. When he got to the corner, the male placed
     something in the bushes and then immediately ran back
     eastbound on Fairmount Avenue. The officers pursued him slowly
     in their unmarked vehicle until he reached a CVS parking lot in the
     middle of the block. There, Officer Dickerson saw the male enter
     the driver’s seat of an SUV and observed a second male, Appellant
     [Burney], sitting in the passenger seat.

     Officer Dickerson instructed his partner to quickly drive back to
     the corner so that he could see what was in the bushes. He
     observed two cell phones with “feminine” cases -- one was pink
     and the other had red hearts. At that point he told his partner,
     “[L]et’s go have a conversation with those two guys.” As they
     were returning to the CVS lot, police radio broadcast a call of
     gunpoint robbery in progress on the 1700 block of North Street.
     Officer Dickerson observed that the first male -- later identified as
     Jeremiah Byrd -- matched the flash description from the robbery
     call. Officer Dickerson exited the vehicle and approached the
     passenger side of the SUV, while his partner drove to the other
     side to “block it in.” Officer Dickerson instructed the males not to
     move. Mr. Byrd nonetheless exited the driver’s seat and came
     running around to the passenger side of the vehicle, at which time
     [Burney] climbed over to the driver’s seat and fled the vehicle.
     Mr. Byrd was detained by Officer Holden and [Burney] was
     [apprehended] by Officer Dickerson.

     Officer Dickerson testified that he peered in the SUV and saw, in
     plain view, a silver handgun on the passenger side floor where
     [Burney] was sitting. He also saw, in plain view, a pocketbook
     and a purse/clutch on the back seat. The items were recovered
     under property receipt. Two females then arrived at the scene
     and they each identified Mr. Byrd as the man who robbed them
     with a gun. They also identified the two phones, the pocketbook

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       and the clutch as theirs. At that point, the officers arrested Mr.
       Byrd. Because [Burney] was about to be transported to the
       station for investigation, Officer Dickerson performed a search
       incident to transport. [Burney’s] right front pocket contained
       $118 in cash, and both a debit card and a credit card “with
       complainant’s name on it.

Trial Court Opinion, 1/19/18, at 2-5 (citations and footnotes omitted).

       Following a bench trial, the court convicted Burney of conspiracy

(robbery), theft by unlawful taking and theft by receiving stolen property. On

June 12, 2017, Burney was sentenced to an aggregate term of 1½-3 years’

incarceration, followed by a five-year probationary period. Burney filed post-

sentence motions, which were denied. Burney filed a timely notice of appeal

and a court-ordered statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

       Burney raises the following issues for our review:4

       1) Whether the trial court [erred] in entering verdicts of guilty
       against [Burney] because the evidence at trial was insufficient to
       support a conviction.

       2) Whether the verdict of guilty was against the weight of the
       evidence at trial.

Brief of Appellant, at 4.




____________________________________________


       4Even though Burney’s brief does not attempt to apply law to the facts,
making it difficult to conduct appellate review, we decline to dismiss because
of the comprehensive Rule 1925(a) Opinion authored by the Honorable Susan
I. Schulman.



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      Burney first claims the evidence was insufficient to convict him of

conspiracy to commit robbery. He argues the evidence only shows possession

of stolen property, but does not show the existence of an agreement. He is

entitled to no relief.

      “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. Cox, 72 A.3d 719, 721 (Pa. Super. 2013).

      To convict a defendant of conspiracy, the trier of fact must find the

following:
      (1) the defendant intended to commit or aid in the commission of
      the criminal act; (2) the defendant entered into an agreement with
      another (a “co-conspirator”) to engage in the crime; and (3) the
      defendant[,]     or one or more of the other co-conspirators
      committed an overt act in furtherance of the agreed upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).

      An explicit or formal agreement to commit a crime can rarely be proved.

However, direct evidence is unnecessary because “proof of criminal

partnership is almost invariably extracted from the circumstances that attend

its activities.”    Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super.

2012).

      As the trial court noted, there is no direct evidence that Burney

committed the robbery. However, there was sufficient circumstantial evidence

to establish a common understanding to commit the robbery.                 During the

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robbery, officers observed Byrd stash the phones and return to the vehicle

where Burney was sitting in the passenger seat with a silver gun at his feet.

When Burney was apprehended trying to flee the officers, he was caught “red-

handed in possession of the fruits of the robbery, namely, cash and

credit/debit cards taken from the victims.” Trial Court Opinion 1/19/18, at 9.

All this occurred within minutes of the robbery and in the same location as the

robbery.    Burney was in the getaway vehicle, in possession of the

complainant’s stolen property, with the gun used in the robbery at his feet,

and with the man identified as the robber. When officers approached, he fled.

      Viewed in the light most favorable to the Commonwealth, there is ample

evidence to establish that there was an agreement to enter into a robbery.

Contrary to Burney’s statement that there is “no evidence [Burney] agreed to

rob someone,” there is sufficient circumstantial evidence for the fact finder to

find a conspiracy.

      Burney also claims that the verdict was against the weight of the

evidence.

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly


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      exercised and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, the trial court found the Commonwealth’s witnesses credible. The

only issue was whether Burney actually possessed stolen property.     Judge

Schulman, acting as the finder of fact, reasonably found Burney was in

possession of the stolen property. Judge Schulman found Burney failed to

show how the result “shocks one’s sense of justice.” Trial Court Opinion,

1/19/18, at 12. Based on our review of the record, we can discern no abuse

of discretion in the court’s conclusion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/19




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