J-S68018-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
RAHKEE WILLIAMS,                          :
                                          :
                   Appellant              :   No. 2293 EDA 2014

          Appeal from the Judgment of Sentence February 4, 2011,
               Court of Common Pleas, Philadelphia County,
             Criminal Division at No. CP-51-CR-0008129-2008

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED DECEMBER 08, 2015

      Rahkee Williams (“Williams”) appeals nunc pro tunc from the February

4, 2011 judgment of sentence entered by the Philadelphia County Court of

Common Pleas. Upon review, we affirm.

      The trial court summarized the facts and procedural history of the case

as follows:

              FACTS

                 On April 1, 2008, [] Williams, along with co-
              defendants Kyle Brantley and Eric Thornton stole a
              large amount of marijuana, wallets and a car from
              victims Tariq Amin and Travis Simmons. Thornton,
              Brantley, and Williams were quickly apprehended by
              police and they had the incriminating evidence of the
              victims’ wallets with them inside Brantley’s house at
              1254 Newkirk Street. As will be set forth in the
              discussion below, the police were alerted to the 1254
              Newkirk Street address because of an earlier traffic
              stop in which the police saw the three defendants
              and the two victims together.
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             This court heard testimony from Renee Wiley,
          who owned 1254 Newkirk Street and is the mother
          of Williams’ co-defendant, Kyle Brantley. From this
          testimony, this court concluded that on April 1,
          2008, the day of the seizure at issue, defendant
          Williams had permission to be inside the house, that
          he was a guest of the home and, as an invitee of
          Brantley and Wiley, had a reasonable expectation of
          privacy in the residence.

             Officer Johncola testified that he is a thirteen[-
          ]year veteran of the Philadelphia Police Department
          and was on duty with his partner, on the night of
          April 1, 2008. At approximately 9:05 p.m., he
          observed a silver Mustang, driven by codefendant
          Brantley, double[-]parked on 52nd Street with traffic
          backing up behind it. After the Mustang had pulled
          back into the street, [Officer] Johncola moved the
          police car in front of a Buick Lucerne and a red Ford
          Edge[] that were immediately behind the Mustang,
          and pulled over the Mustang. The officers waved the
          Lucerne and the Edge around them, unsure as to
          whether or not the three vehicles were traveling
          together, and as the Lucerne and Edge vehicles
          passed, the officers saw that there were two black
          males in the Lucerne and two black males in the
          Edge. After those cars passed, [Officer] Johncola and
          his partner approached the silver Mustang driven by
          Brantley and asked Brantley for his vehicle’s
          paperwork. Brantley was not issued a ticket and was
          released with a verbal warning for the traffic
          violation. Officer Johncola subsequently completed a
          report for the brief investigation, which included
          Brantley’s address of 1254 South Newkirk Street in
          Philadelphia (“the 1254 residence”).

             Approximately thirty-five [] minutes after the car
          stop, Officer Johncola responded to a radio call in
          which the two individuals who they had previously
          seen inside the Edge (Travis Simmons and Tariq
          Amin) had been carjacked. Simmons and Amin
          recognized Officer Johncola and told him that the



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          individuals involved in the earlier traffic stop were
          the ones who carjacked them. Based upon this
          information, Officer Johncola went to the address
          listed in the paperwork for the car stop, the 1254
          residence where co-defendant Brantley lived. Upon
          arrival at the residence, Officer Johncola saw both
          the Mustang and the Lucerne from the earlier traffic
          stop.

              Once at the residence, the officers continued to
          get more information regarding the carjacking over
          the radio, including the update that a total of three
          black males were involved in the carjacking. After
          backup officers had arrived, they gained entry into
          the residence. As soon as Officer Johncola passed
          the entryway of the residence he detected a strong
          odor of marijuana. The officers first saw Brantley
          walking out from the kitchen and then two other
          males, later identified as Eric Thornton and []
          Williams, came up from the basement. The officers
          asked everyone to sit on the couch in the living
          room, subsequently secured the property, and called
          for the Narcotics Field Unit. [While Williams was
          sitting on the couch, police observed him attempt to
          stuff a Buick key into the couch cushion.]

             After the property had been secured, the officers
          called for the complainants, Travis Simmons and
          Tariq Amin. As the complainants sat in the police
          vehicle, officers escorted [] Brantley, Williams, and
          Thornton outside individually. They were each
          escorted out of the residence by a single officer,
          holding them at the back of the waist, and without
          handcuffs. A spotlight was used to illuminate each of
          their faces and all three co-defendants were
          identified by the complainants.

             In response to the call to the Narcotics Field Unit
          from Officer Johncola, Officer Sumter responded to
          the 1254 residence. Officer Sumpter testified that he
          was[] an experienced narcotics officer having worked
          in the Narcotics Field Unit for the past twelve []
          years. He also testified that upon his arrival shortly



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          after midnight, he smelled the odor of marijuana and
          subsequently recovered, from plain view, a brown
          and tan bag containing a large Ziplock bag of
          marijuana. Officer Sumter prepared a search
          warrant, specifying marijuana, United States
          currency, weapons, paraphernalia, tally books, and
          proof of residence, and returned to the 1254
          residence to execute the warrant at approximately
          4:00 a.m. on April 2, 2008.

              In executing the search warrant, Officer Sumter
          recovered several black plastic bags containing
          marijuana[FN]2 from the kitchen. From the basement,
          he recovered a black and silver Taurus handgun with
          a magazine loaded with nine [] rounds, a letter
          addressed to co-defendant Brantley, a black leather
          wallet containing an ID, credit cards, and numerous
          documents for a Tariq Amin, and a black leather
          wallet with an ID for a Travis Simmons. Officer
          Sumter placed all of the bags of marijuana on one
          property receipt and the letter addressed to co-
          defendant Brantley was placed on another receipt
          that same day. Officer Sumter later prepared a third
          property receipt for the two wallets on May 19,
          2008. The officer explained that guns, drugs, and
          currency must be placed on property receipt at the
          time they are recovered, but that paraphernalia and
          other items may be placed on receipt at a later time,
          provided that they are stored inside the safe at
          police headquarters. Officer Sumter also testified
          that he incorrectly listed the time of recovery of the
          wallets on the property receipt because, given the
          six[-]week delay, he had entered the time that the
          responding officers had arrived at the residence
          rather than the time the search warrant was actually
          executed.
              ___________________________________
          [FN]2
                The officer’s in-court testimony provided the
          following description:

              From the kitchen area, a black plastic baggie
              containing one large clear baggie containing
              alleged marijuana. Another black plastic baggie



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               containing a large bag containing seven small
               clear baggies containing alleged marijuana.
               Another black police plastic bag containing one
               large clear bag containing alleged marijuana.
               And again seven smaller clear baggies
               containing    alleged     marijuana.     N.T.[,]
               5/5/2010[,] at 33[].

Trial Court Opinion, 3/11/15, at 4-7 (footnote in the original).

            PROCEDURAL HISTORY

               Prior to trial, Williams and his co-defendants[,]
            Kyle Brantley and Eric Thornton[,] presented a
            motion to suppress. This court heard testimony and
            argument and subsequently denied the motion. On
            May 5, 2010, Williams elected to exercise his right to
            a jury trial and pled not guilty to the above listed
            charges. On May 12, 2010, the jury found Williams
            guilty of [robbery, conspiracy to commit robbery of a
            motor vehicle, theft by unlawful taking, person not to
            possess firearm, carrying a firearm without a license,
            carrying a firearm on a public street in Philadelphia,
            and possession of an instrument of crime]. At the
            conclusion of the trial, the case was continued to
            February 4, 2011 for sentencing. On February 4,
            2011, this court sentenced Williams to [seven to
            fourteen] years of incarceration in a state facility for
            [r]obbery [] and [c]onspiracy [], to run concurrently,
            and [three to six] years of incarceration in a state
            facility for [carrying a firearm without a license], to
            run consecutively, for an aggregate sentence of [ten
            to twenty] years of incarceration. He received no
            further penalty on the remaining charges. On
            February 9, 2011, Williams filed a post-sentence
            motion, which this court denied on March 2, 2011.

               On March 2, 2012, Williams filed a PCRA petition.
            PCRA counsel was appointed and, on December 6,
            2013, counsel filed an [a]mended [p]etition. The
            matter was first listed before this court for decision
            on July 10, 2014. On July 10, 2014, following a
            review of the record, this court granted Williams’



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            petition to reinstate his appellate rights nunc pro
            tunc.

Id. at 2.

      Following the reinstatement of his direct appeal rights, Williams filed a

timely notice of appeal and complied with the trial court’s order for the filing

of a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). On appeal, he raises the following issues for our review,

which we reordered for ease of disposition:

            [1.] Did the trial court err in not addressing, and
            therefore in effect, denying [Williams’] Rule 600
            [m]otion?

            [2.] Did the trial court err in allowing the admission
            of evidence not provided in discovery and turned
            over to defense counsel on the day of trial, over two
            [] years after the arrest?

            [3.] Did the trial court err in not finding that the
            prosecutor     committed       gross     prosecutorial
            misconduct by continually eliciting whether Detective
            Baker believed the complainants were victims,
            thereby attempting to bolster their credibility?

            [4.] Did the trial court err in not finding [that] the
            charges were not [sic] against the weight of the
            evidence?

            [5.] Did the trial court err in finding the evidence
            was insufficient [sic] to show, as a matter of law that
            [Williams] was guilty of [c]riminal [c]onspiracy to
            [e]ngage in [r]obbery of a [m]otor [v]ehicle[] where
            there   was     no     evidence,   either   direct   or
            circumstantial, that there was a plan to take the
            motor vehicle and no defendant was convicted of
            robbery of a motor vehicle?




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            [6.] Did the trial court err in finding [that the]
            evidence was insufficient [sic] to show, as a matter
            of law, that [Williams] was guilty of [the crimes for
            which he was convicted] where the testimony was so
            contradictory and impeached on cross-examination
            to the point of not being worthy of belief?

            [7.] Did the trial court err in the discretionary
            aspects of sentencing[] where the sentencing court
            failed to consider mitigating factors and exceeded
            that which was necessary to insure the rehabilitative
            needs of [Williams] as well as the protection of
            society?

Williams’ Brief at 8-9.

Rule 600

      In his first issue on appeal, Williams contends that the trial court

violated his right to a speedy trial pursuant to Rule 600 of the Pennsylvania

Rules of Criminal Procedure, and the trial court abused its discretion by

denying his motion to dismiss the charges. Williams’ Brief at 28-30. The

trial court states that although Williams filed a Rule 600 motion, he never

presented the motion for disposition before the court, rendering his claim

moot. Trial Court Opinion, 3/11/15, at 7.

      In evaluating a Rule 600 claim, we review a trial court’s ruling thereon,

in the light most favorable to the prevailing party, for an abuse of discretion.

Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015).                “Our

scope of review is limited to the evidence on the record of the Rule 600

evidentiary hearing, and the findings of the trial court.”        Id. (citation

omitted).



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      The record in the case at bar reflects that Williams filed his Rule 600

motion on April 30, 2010, but, as stated by the trial court, that the motion

was never presented to the trial court for decision. Although he includes a

passing reference in his statement of questions involved that the trial court

“in effect” denied his Rule 600 motion by failing to rule upon it, his argument

in support of this issue contains no recognition or reference to his failure to

present the motion for adjudication.       See Williams’ Brief at 8, 28-30.

Rather, his sole argument made in support of the issue in his brief on appeal

is that the charges should have been dismissed pursuant to Rule 600. Id. at

28-30. As the trial court did not render a decision on this motion, and there

was no hearing held, we have no basis to grant Williams relief on the

argument presented. See Roles, 116 A.3d at 125.

Suppression of Evidence

      In his second issue on appeal, Williams asserts that the trial court

erred by failing to suppress a police report and a property receipt that

included the victims’ wallets as a sanction for the Commonwealth’s discovery

violation, as the Commonwealth did not turn the evidence over to the

defense until two years after Williams’ arrest.     Williams’ Brief at 30-31.

Williams cites no law in support of his contention that suppression was

required, let alone warranted, under the circumstances. See id.; see also

Pa.R.Crim.P. 573(E) (identifying potential remedies for discovery violations);

Commonwealth v. Smith, 955 A.2d 391, 394 (Pa. Super. 2008)



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(“decisions involving discovery in criminal cases lie within the discretion of

the trial court”).   As such, this argument is waived.   Commonwealth v.

Janda, 14 A.3d 147, 164 (Pa. Super. 2011); Pa.R.A.P. 2119(a)-(c).

Prosecutorial Misconduct

      Williams next asserts that the trial court erred by failing to grant a

mistrial after the prosecutor committed misconduct by improperly vouching

for a Commonwealth witness. Williams’ Brief at 19. The alleged misconduct

by the prosecutor stemmed from the following portion of the direct

examination of Detective Baker, a Commonwealth witness:

            Q. Did you have any idea why Tariq Amin and Travis
            Simmons were here in Philadelphia?

            A. No.

            Q. Did you believe them when they told you they
            had gone to New York to buy clothes and got lost
            looking for family?

            A. At first, but not when I compared -- … [n]ot after
            I compared both their interviews together, I don’t
            believe that’s what occurred.

            Q. Do you believe they were victims of crime?

            [Counsel for Williams]: Objection.

            [Counsel for Brantley]: Objection.

            [Counsel for Thornton]: Objection.

            The Court: My jury, you now all along what’s going
            on, right? You’re the one to tell us what you think.
            This officer obviously believed that there was enough
            to make an arrest, right? That’s why he’s a police



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           officer. That’s why he’s a detective. … Remember
           when you walked in and I said an arrest is an arrest,
           the fact that these three defendants were sitting
           here at trial. All that is, is they have a presumption
           of innocence that continues all the way until now, all
           the way until the time that you hear my instructions
           on the law, until you go back and deliberate. It
           makes no difference what any of us think – me, the
           detective, the attorneys, none of us, about who to
           believe or not to believe, who was arrested, who
           wasn’t arrested, who everybody else says is a victim
           or isn’t a victim, what was recovered, none of that.
           All of that is your decision, okay? But the officer’s
           allowed to tell you what went into his decision, okay?
           And you judge his credibility like you judge
           everybody else’s. Do you understand that? He’s
           only telling you what he did. Very well. … He may
           give you the information that went into his
           calculation of what he did.

           By [The Prosecutor]:
           Q. Go ahead. Give us that information.

           A. I believe they were victims of crime, yes.

           [Counsel for Brantley]: Objection.

           [Counsel for Thornton]: Move to strike that.

           [Counsel for Brantley]: Move to strike that.

           The Court: I’ve told my jury very well. He may
           have thought it. I may think differently, the district
           attorney may think differently, the defense lawyers
           may think differently, everybody in the audience
           may thing another thing, okay? It doesn’t matter.
           It’s only what you think.

N.T., 5/11/10, at 74-77.

     The law is clear:     “In order to preserve a claim of prosecutorial

misconduct for appeal, a defendant must make an objection and move for a



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mistrial.”   Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super.

2007) (emphasis added). The record reflects that Williams failed to move

for a mistrial. As such, the issue is not preserved for our review.

Weight of the Evidence

      In his fourth issue on appeal, Williams asserts that his convictions

were against the weight of the evidence presented. Williams’ Brief at 31-33.

According to Williams, the testimony of the victims regarding the events that

led up to the robbery and occurred thereafter were clear fabrications, 1

making it “an impossibility, when reviewing the record, to determine what

parts of their stories were fabricated and which ones were not.” Id. at 32.

Williams therefore argues that “[b]ecause Simmons and Amin presented

fabrications of events throughout the day, both before the incident and after

the incident, finding that they sandwiched between these fabrications

truthful testimony regarding the alleged incident is ‘so contrary to the

evidence as to shock one’s sense of justice.’” Id. at 33.

      The trial court found that the jury properly performed its function and

assessed the credibility of the witnesses presented, as instructed by the trial


1
   This testimony included claims that the victims drove from Richmond,
Virginia to Queens, New York, spent time visiting with family and window-
shopping, and then drove to Philadelphia and dropped off a friend of the
family there, all within a six-to-eight-hour timeframe. Williams’ Brief at 32;
see N.T., 5/5/10, at 199-202; N.T., 5/6/10, at 6, 18. The victims also
testified that after they provided their statements to the police about the
robbery, the police took approximately $5000 from them that the robbers
did not find and said, “Welcome to the City of Brotherly Love.” N.T., 5/6/10,
at 34, 173.


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court. Trial Court Opinion, 3/11/15, at 17-18. Noting that a weight of the

evidence claim requires consideration of all of the evidence presented, the

trial court stated: “Although this court acknowledged the inconsistencies in

the victims’ testimony, this court cannot isolate victim testimony from the

testimony provided by the six Philadelphia police officers and three police

detectives, as well as all other material evidence admitted at trial.” Id. at

18. It thus concluded that “the jury verdict, reflecting the jury’s assessment

of the weight of the evidence, was not so contrary to the evidence presented

at trial as to ‘shock one’s sense of justice.’” Id.

      When reviewing a challenge to the weight of the evidence, we are

mindful of the following:

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

Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015)

(citation omitted).



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      The   record   reflects   that   Amin     and   Simmons   presented   highly

questionable, and in some instances, contradictory testimony regarding the

events of the day that led up to the robbery and that occurred thereafter.

See N.T., 5/5/10, at 199-202; N.T., 5/6/10, at 6, 18, 34, 173, 198-99; N.T.,

5/11/10, at 58-59. Furthermore, their statements to the police about what

occurred prior to the robbery were inconsistent with each other. See N.T.,

5/11/10, at 55-56. What occurred during the robbery, as related by both

Simmons and Amin, however, remained consistent from the time they spoke

with police immediately after the robbery through their testimony at trial.

See N.T., 5/5/10, at 203-213, 219-20, 223-24; N.T., 5/6/10, at 30, 145-46,

152-54, 158, 160-62, 181-83, 185-86; N.T., 5/11/10, at 51-53.                 The

evidence found by police and presented at trial corroborated their testimony

about the robbery, including the victims’ wallets and the guns used to

perpetrate the robbery. See N.T., 5/5/10, at 213-15, 236-37; N.T., 5/6/10,

at 157, 160-61; N.T., 5/11/10, at 68-71.

      “This Court cannot substitute its judgment for that of the jury on

issues of credibility.” Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa.

2004). The trial court, which had the benefit of sitting through the trial and

observing the witnesses as they testified, determined that the jury’s verdict

was not contrary to the evidence and did not shock its sense of justice.

Based upon the record before us, we find no abuse in the trial court’s

exercise of discretion in this manner.



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Sufficiency of the Evidence – Conspiracy to Commit Robbery of Motor

Vehicle

      In his fifth issue, Williams asserts that there was insufficient evidence

to convict him of conspiracy to commit robbery of a motor vehicle. Williams’

Brief at 18-19. Williams contends that “the individual that took the vehicle

did so based upon a spontaneous decision that taking the vehicle would

make it more difficult to be identified in a timely manner.”    Id. at 18. In

other words, Williams asserts that because there was no evidence of a

predetermined agreement between Williams, Brantley and Thornton that one

of them would take the vehicle, the evidence did not sufficiently establish a

conspiracy to steal the car.

      “Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo and our scope of review is

plenary.” Tejada, 107 A.3d at 792 (citation omitted).

               We review the evidence in the light most
            favorable to the verdict winner to determine whether
            there is sufficient evidence to allow the jury to find
            every element of a 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



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            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 finder 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.

Id. (citations omitted).

      The Pennsylvania Crimes Code defines criminal conspiracy as follows:

            A person is guilty of conspiracy with another person
            or persons to commit a crime if with the intent of
            promoting or facilitating its commission he:

            (1) agrees with such other person or persons that
            they or one or more of them will engage in conduct
            which constitutes such crime or an attempt or
            solicitation to commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an
            attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). This requires proof that the defendant: 1) entered

into an agreement with another to commit or aid in the commission of a

crime; 2) shared the criminal intent with that other person; and 3) an overt

act was committed in furtherance of the conspiracy.       Commonwealth v.

Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015). “This overt act need not be

committed by the defendant; it need only be committed by a co-

conspirator.”   Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa.

Super. 2002) (citation omitted).



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     The pertinent portion of the record in the case before us reflects that

Williams and Thornton approached Simmons and Amin with guns drawn

while the victims were sitting in their rented Ford Edge.           Williams and

Thornton ordered the victims out of the car and had them lie face down on

the sidewalk while Williams and Thornton riffled through their back pockets

and stole their wallets and cellphones.         N.T., 5/5/10, at 211-16; N.T.,

5/6/10, at 153-57, 160-61. Thereafter, either Williams or Thornton yelled,

“Take the truck.” N.T., 5/6/10, at 158. At that, either Williams or Thornton

jumped into the Ford Edge and drove off, while the other perpetrator ran

around the block. N.T., 5/5/10, at 219-20. Brantley was “waiting” and “on

the phone” while the robbery occurred. N.T., 5/6/10, at 158.

     Viewing    the   testimony   in     the    light   most   favorable   to   the

Commonwealth, it is clear that Williams either instructed Thornton to steal

the Ford Edge, or complied with Thornton’s instruction to steal the vehicle.

Either way, they agreed that one of them would steal the car, with a shared

criminal intent, and one of them committed the overt act of actually taking

the car in furtherance of their agreement. See Rogal, 120 A.3d at 1001;

Murphy, 795 A.2d at 1038.         Therefore, the evidence was sufficient to

convict Williams of conspiracy to commit theft of a motor vehicle.

Sufficiency of the Evidence – All Convictions

     In his sixth issue, Williams asserts that the evidence was insufficient to

support any of his convictions because the testimony of the victims was



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contradictory and impeached on cross-examination, rendering it unworthy of

belief.   Williams’ Brief at 23-26.    It is well settled that “[a]n argument

regarding the credibility of a witness’[] testimony goes to the weight of the

evidence, not the sufficiency of the evidence.” Commonwealth v. Melvin,

103 A.3d 1, 43 (Pa. Super. 2014). Williams contends, however, that “[t]he

testimony of the witnesses in this matter was so untrustworthy as to render

their testimonies beyond belief.”     Williams’ Brief at 25.   In support of his

argument he cites to our Supreme Court’s decisions Commonwealth v.

Karkaria,     625   A.2d   1167     (Pa.   1993)   and   Commonwealth         v.

Farquharson, 354 A.2d 545 (Pa. 1976).

      In Farquharson, our Supreme Court stated the following:

                 Traditionally under our system of jurisprudence,
             issues of credibility are left to the trier of fact for
             resolution. While there may be some legitimacy for a
             trial court, who has also observed the witnesses as
             they testified, to consider the weight of the evidence
             and to that extent review the jury's determination of
             credibility, there is surely no justification for an
             appellate court, relying solely upon a cold record, to
             exercise such a function.

                 On appellate review of a criminal conviction, we
             will not weigh the evidence and thereby substitute
             our judgment for that of the finder of fact. To do so
             would require an assessment of the credibility of the
             testimony and that is clearly not our function.

                This concept, however, must be distinguished
             from an equally fundamental principle that a verdict
             of guilt may not be based upon surmise or
             conjecture. Following this principle, courts of this
             jurisdiction have recognized that where evidence



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           offered to support a verdict of guilt is so unreliable
           and/or contradictory as to make any verdict based
           thereon pure conjecture, a jury may not be
           permitted to return such a finding. Commonwealth
           v. Bennett, [] 303 A.2d 220 ([Pa. Super.] 1973)
           (and cases cited therein). Appellant argues that the
           Bennett principle is applicable here. We do not
           agree.

              The Bennett principle is applicable only where
           the party having the burden of proof presents
           testimony to support that burden which is either so
           unreliable or contradictory as to make any verdict
           based thereon obviously the result of conjecture and
           not reason. In the facts of the Bennett case, the
           Commonwealth had predicated its case upon the
           evidence of one individual. The record clearly
           established that the testimony of that witness was so
           contradictory as to render it incapable of reasonable
           reconciliation and therefore the court properly
           refused to allow a verdict of guilt to stand.

Farquharson, 354 A.2d at 550 (most internal citations omitted).

     Our High Court applied the above holding of Farquharson in

Karkaria to reverse the appellant’s conviction of forcible rape. In Karkaria,

the appellant was charged by private criminal complaint based upon his

alleged rape of his younger stepsister.     Karkaria, 625 A.2d at 1167.   At

trial, the Commonwealth’s case rested entirely upon the testimony of the

fourteen-year-old alleged victim, who testified that the rapes occurred on

weekends when her mother and stepfather were out and the appellant was

babysitting her.   Id. at 1168. She denied that her other stepbrother, the

appellant’s biological brother was in the house at the time.    Id.   It was

uncontested, however, that pursuant to the custody arrangement between



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the appellant’s parents, the appellant and his brother were always in the

home on the same weekends.       Id.    It was likewise uncontested that the

alleged victim’s mother and stepfather only went out on the weekends. Id.

at 1171.   Moreover, although the alleged victim testified that the rapes

occurred when the appellant babysat her, she also acknowledged that during

the timeframe of the alleged rapes, she was old enough to watch herself and

the appellant no longer acted as her babysitter.         Id. at 1168.   The

Commonwealth presented no physical evidence or reports made regarding

the alleged rapes. Id. at 1169, 1171.

     The Karkaria Court concluded:

              The total failure of the Commonwealth to present
           any evidence that a single act of intercourse
           occurred during the [timeframe alleged] casts
           serious doubt upon the jury’s ability to reasonably
           conclude that any criminal activity occurred during
           the time period charged.

                                 *     *      *

              [Therefore,] we are compelled to conclude that
           the evidence presented at trial when carefully
           reviewed in its entirety, is so unreliable and
           contradictory that it is incapable of supporting a
           verdict of guilty, and thus, is insufficient as a matter
           of law. Having reached this conclusion after careful
           and meticulous review of the record presented to
           this Court, we find that the verdict of the jury was
           not based on anything more than speculation and
           conjecture.

Id. at 1171-72 (footnote omitted).




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      Contrary to Williams’ argument, this does not mean that any case

involving   allegedly   contradictory     or     inconsistent   testimony   warrants

consideration (let alone reversal) on sufficiency grounds.           Rather, as our

Supreme Court stated in Commonwealth v. Brown, 52 A.3d 1139 (Pa.

2012), “the critical inquiry” in resolving a sufficiency claim is

            whether the record evidence could reasonably
            support a finding of guilt beyond a reasonable doubt.
            But this inquiry does not require a court to “ask itself
            whether it believes that the evidence at the trial
            established guilt beyond a reasonable doubt.”
            Instead, the relevant question is whether, after
            viewing the evidence in the light most favorable to
            the prosecution, any rational trier of fact could have
            found the essential elements of the crime beyond a
            reasonable doubt. This familiar standard gives full
            play to the responsibility of the trier of fact fairly to
            resolve conflicts in the testimony, to weigh the
            evidence, and to draw reasonable inferences from
            basic facts to ultimate facts. Once a defendant has
            been found guilty of the crime charged, the
            factfinder’s role as weigher of the evidence is
            preserved through a legal conclusion that upon
            judicial review all of the evidence is to be
            considered in the light most favorable to the
            prosecution. The criterion thus impinges upon “jury”
            discretion only to the extent necessary to guarantee
            the fundamental protection of due process of law.

               [A] reviewing court “faced with a record of
            historical facts that supports conflicting inferences
            must presume – even if it does not affirmatively
            appear in the record – that the trier of fact resolved
            any such conflicts in favor of the prosecution, and
            must defer to that resolution.”




                                        - 20 -
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Id. at 1163-64 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 326

(1979) (emphasis in the original)). The Brown Court clarified that despite

its holding in Karkaria,

            [The] Court considers questions regarding the
            reliability of the evidence received at trial to be
            within the province of the finder-of-fact to resolve,
            and our Court will not, on sufficiency review, disturb
            the finder-of-fact’s resolution except in those
            exceptional instances, as discussed previously,
            where the evidence is so patently unreliable that the
            jury was forced to engage in surmise and conjecture
            in arriving at a verdict based upon that evidence.

Id. at 1165.

      The case before us is not one that involves evidence that “is so

patently unreliable that the jury was forced to engage in surmise and

conjecture in arriving at a verdict based upon that evidence.” Id. As stated

above, the victims’ testimony regarding their whereabouts before they were

robbed and the events that occurred with the police following the robbery

was of questionable credibility. The testimony provided regarding the events

at the time of the robbery, however, was not only consistent between the

two victims’ testimony, but also was supported by corroborating evidence.

See DeJesus, 860 A.2d at 107 (finding Farquharson inapplicable where

the testimony of the two victims regarding “the crucial events” of the crime

was consistent and largely corroborated by other evidence).     As such, the

question presented challenges the weight of the evidence to support

Williams’ convictions, see Melvin, 103 A.3d at 43, which, as we have



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already stated, was properly decided by the trial court. As such, no relief is

due.

Sentencing

       Williams’ final issue on appeal challenges the discretionary aspects of

his sentence, which, as Williams recognizes, is not appealable as of right.

See Williams’ Brief at 26-27. Rather, “[a]n appellant must satisfy a four-

part   test   to   invoke   this   Court’s   jurisdiction   when   challenging   the

discretionary aspects of a sentence.” Tejada, 107 A.3d at 797 (Pa. Super.

2015) (citation omitted).      This requires the appellant to satisfy all of the

following:

              (1) the appellant preserved the issue either by
              raising it at the time of sentencing or in a post[-
              ]sentence motion; (2) the appellant filed a timely
              notice of appeal; (3) the appellant set forth a concise
              statement of reasons relied upon for the allowance of
              his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
              appellant raises a substantial question for our
              review.

Id. (citation omitted).

       The certified record on appeal reveals that Williams raised in a post-

sentence motion the issue he now seeks for this Court to review and timely

filed his notice of appeal. He also included a 2119(f) statement in his brief,

claiming that the trial court failed to consider mitigating factors when




                                       - 22 -
J-S68018-15


sentencing Williams in the aggravated range,2 resulting in a sentence that

exceeded the time necessary to meet his rehabilitative needs.       Williams’

Brief at 7. Williams’ 2119(f) statement consists of two sentences and does

not contain any citation to authority to support a finding that the issue

raised constitutes a substantial question for our review or setting forth the

provision of the sentencing code violated by his sentence.     See Williams’

Brief at 7. Although Williams cites case law in the argument section of his

brief that indicates that the issue presents a substantial question for our

review, see id. at 27, the law is clear:


               We examine an appellant’s Pa.R.A.P. 2119(f)
            statement to determine whether a substantial
            question exists. … [O]nly where the appellant’s Rule
            2119(f) statement sufficiently articulates the manner
            in which the sentence violates either a specific
            provision of the sentencing scheme set forth in the
            Sentencing Code or a particular fundamental norm
            underlying the sentencing process, will such a
            statement be deemed adequate to raise a substantial
            question so as to permit a grant of allowance of
            appeal of the discretionary aspects of the sentence.

Commonwealth v. Hill, 66 A.3d 365, 368 (Pa. Super. 2013) (citation

omitted).

      The Commonwealth did not file a timely responsive brief in this appeal,

and we therefore do not consider its objection to Williams’ deficient 2119(f)




2
    The record reflects that the trial court sentenced Williams in the
aggravated range for his robbery conviction. N.T., 2/4/11, at 33-34.


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statement and elect to review the issue raised.3       See Commonwealth v.

Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (en banc) (“If an appellant

fails to comply with R.A.P. 2119(f) and appellee fails to object, this Court

may review appellant’s claims with regard to the discretionary aspects of

sentence.”).    As Williams raises a substantial question for our review, see

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en

banc), we proceed to review the merits of the issue raised.

      We review a discretionary sentencing challenge for an abuse of

discretion.    Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.

2015) (en banc).     An abuse of discretion requires the appellant to prove,

based on the record, “that the sentencing court ignored or misapplied the

law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,

or arrived at a manifestly unreasonable decision.” Id. (citation omitted).

      As stated above, Williams contends that the trial court abused its

discretion by failing to consider mitigating factors that should have


3
    On June 9, 2015, the date the Commonwealth’s responsive brief was
originally due in this matter, the Commonwealth requested an extension of
time to file its brief until August 10, 2015. We granted that request. It
failed to do so. Instead, on August 10, 2015, the Commonwealth sought a
second extension, requesting a briefing deadline of September 24, 2015.
We once again granted the Commonwealth’s petition and included a notation
indicating that absent extraordinary circumstances, this Court would not
grant any additional extensions. Order, 8/11/15. The Commonwealth did
not file any additional requests for time extensions and also failed to file its
responsive brief until a month after its second extended deadline. We
therefore did not consider the Commonwealth’s untimely-filed brief in
reaching our decision. See Commonwealth v. Tisdale, 100 A.3d 216, 217
n.4 (Pa. Super. 2014), appeal denied, 113 A.3d 280 (Pa. 2015).


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decreased his sentence, including “the details of his upbringing, which

included living in an environment of drug and alcohol addiction[;] … the

developmental issues that come with being brought up this way[;] … [and

that Williams] also suffered an extreme loss as an adult, when his brother

was murdered.”     Williams’ Brief at 28.      The record reflects, however, that

the trial court had the benefit of a presentence investigation report when

sentencing Williams.      N.T., 2/4/11, at 34.    “When a sentencing court has

reviewed a presentence investigation report, we presume that the court

properly considered and weighed all relevant factors in fashioning the

defendant’s sentence.” Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.

Super. 2013), appeal denied, 86 A.3d 231 (Pa. 2014) (citation omitted). As

such, no relief is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2015




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