J-S79024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAWAYNE WHITE

                            Appellant               No. 1040 EDA 2015


           Appeal from the Judgment of Sentence November 20, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005005-2014


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED DECEMBER 06, 2016

       Jawayne White appeals from the November 20, 2014 judgment of

sentence entered in the Philadelphia County Court of Common Pleas

following his bench trial convictions for robbery (inflicts bodily injury),

recklessly endangering another person (“REAP”), simple assault, criminal

conspiracy, theft by unlawful taking, and receiving stolen property.1   We

conclude that the record as it comes to us does not contain sufficient

evidence to support the conspiracy conviction and, therefore, vacate White’s

conspiracy conviction.        We affirm the judgment of sentence as to the

remaining convictions.

____________________________________________


       1
       18 Pa.C.S. §§ 3701(a)(1)(iv), 2705, 2701(a), 903(c), 3921(a),
3925(a), respectively.
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       The facts, as adopted by the trial court, are as follows:2

           On September 9, 2014, this matter was tried before this
           Court. . . . .

           [T]he complainant[] testified that on the evening of March
           12, 2014 at approximately 7:55 pm, he was on the
           northeast corner of North Marshall Street and Cecil B.
           Moore Avenue. At that time he had a cell phone in his
           hand and was using it to listen to music. Complainant
           then came in contact with [White], who he did not know.
           [White] was identified in the courtroom by [the
           complainant]. [White] had approached him from behind
           on the night in question. [White] asked [the complainant]
           “what kind of phone you got?” [White] then struck the
           complainant while standing in front of him and the
           complainant then put his phone in his pocket.         Then
           [White] reached in the complainant’s pocket and took his
           phone.

           The police came to the scene and told the complainant to
           go and get his father and come back. After returning, the
           complainant was taken to the hospital and seen in the
           emergency room. He missed two (2) weeks from school.
           Complainant [was] subsequently seen three times by a
           doctor. The phone that was taken cost approximately
           $100-$120. He never received the phone back.

           On cross-examination, the complainant testified that
           [White] approached him. He did not have scratches on his
           fist (and was then shown D-1, which was a photo of his
           fist) nor did [he] attempt to track his phone down. On
           redirect, the complainant said that he did not activate his
____________________________________________


       2
         Because the audio recording of the trial was of poor quality, a
transcript could not be produced. Accordingly, pursuant to Pennsylvania
Rule of Appellate Procedure 1923, White filed a statement in absence of
transcript. The Commonwealth as appellee did not afford itself of the
opportunity provided by Rule 1923 to “serve objections or propose
amendments” to White’s statement. The trial court adopted in part and
amended White’s statement. Trial Ct. Statement in Absence of Transcript
Pursuant to Pa.R.A.P. 1923, 10/30/2015, at 1 (“Rule 1923 Stmt.”)



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        phone’s tracking ability since he only owned [the] phone
        for one day. Complainant was then shown D-2, the notes
        of testimony from the Preliminary Hearing where he said
        he had the phone for 1 month.

        Philadelphia Police Officer Justin Rios of the 22nd precinct
        was then called to the stand to testify as a Commonwealth
        witness. Officer Rios testified that he remembered the
        date of March 12, 2014, and that he was driving in the
        area on the way to work. He observed the complainant
        with another male on the corner of Cecil B. Moore Avenue
        and Marshall Street. He observed [White] standing in front
        of the complainant and yelling at the complainant. He
        then observed [White] run toward the complainant with
        closed fist and strike him in the face.

        Officer Rios pulled over and broke up the altercation. He
        observed the complainant with a bloody and crooked nose.
        The complainant walked in Officer Rios’ direction and
        [White] and his co-defendant followed.       Officer Rios
        testified that he asked the complainant what had
        happened and the complainant responded that [White] hit
        him. Officer Rios then detained [White] by grabbing him
        by the pants.

        Another police officer, who also happened to be on his way
        to work, stopped to lend assistance. After [White] was
        placed in handcuffs, the complainant went home to get his
        father. Some friends of [White] also came to the scene.
        Officer Rios told the complainant to go with the medics.
        Seven to ten people were at the scene at the time of the
        incident. On cross-examination, Officer Rios testified that
        his badge was not visible at the time. At the time of this
        arrest, he had been an officer for 7 years.

        Philadelphia Police Officer Brooke Seiberlich was the last
        witness to testify. He testified that he was on his way to
        work when he observed Officer Rios with [White]. He
        exited his vehicle and was informed that [White] assaulted
        the complainant. Officer Seiberlich then frisked [White]
        and placed him under arrest.        This officer then took
        [White] away from the scene. [White] moved D-1 and D-2
        into evidence without objection.

Rule 1923 Stmt. at 1-3.


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      Following a bench trial, the court convicted White of robbery, REAP,

simple assault, conspiracy, theft by unlawful taking, and receiving stolen

property.   On November 20, 2014, the trial court sentenced White to

concurrent sentences of 2 to 4 years’ incarceration followed by 2 years’

probation for the robbery and conspiracy convictions.         The trial court

imposed no further penalty for the remaining convictions. On November 30,

2014, White filed a post-sentence motion alleging the verdict was against

the weight of the evidence. On March 31, 2015, the motion was denied by

operation of law.

      On April 10, 2015, White filed a notice of appeal. On April 14, 2015,

the trial court issued an order requiring White to file a statement of matters

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b) within 21 days of receiving the transcripts from the

November 20, 2014 hearing. On August 24, 2015, White filed a statement

in absence of transcript pursuant to Pennsylvania Rule of Appellate

Procedure 1923.      White explained that the reporter was preparing the

transcript of the sentencing hearing, but that the digital transcript manager

informed counsel there was a problem with the audio recording of the bench

trial, which prevented her from producing the trial transcripts.       White,

therefore, submitted a statement of the record derived from the case docket

and counsel’s recollection of the trial.

      On September 15, 2015, the trial court ordered White to file a Rule

1925(b) statement within 21 days. On October 5, 2015, White filed a Rule

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1925(b) statement, alleging that there was insufficient evidence to sustain

the robbery conviction and that the guilty verdict for the robbery conviction

was against the weight of the evidence. White also sought an extension of

time to file a supplemental Rule 1925(b) statement upon receipt of all notes

of testimony.      On October 3, 2015, the trial court issued its Rule 1923

statement, which included the following introductory paragraph:

           [P]ursuant to Pa.R.Crim.P. 1923, based upon a review of
           [White’s] proposed Rule 1923 Statement, and no
           response,     objection   or    amendment      from   the
           Commonwealth, this Court hereby adopts, in part,
           [White’s] Statement and has amended the same with this
           Court’s trial notes and recollection. This Statement shall
           be made a part of the record on appeal.

Rule 1923 Stmt. at 1.3        Also on October 30, 2015, the trial court ordered

that White file a revised Rule 1925(b) statement within 21 days.            On

November 9, 2015, White filed a supplemental Rule 1925(b) statement,

alleging that: (1) the evidence was insufficient to sustain the robbery

conviction because the Commonwealth failed to establish a theft occurred;

(2) the evidence was insufficient to establish the conspiracy conviction; and

(3) the verdict for the robbery conviction was against the weight of the

evidence.     On January 29, 2016, the trial court issued its Rule 1925(a)

opinion.

____________________________________________


       3
       The Commonwealth did not respond or object to the statement in
absence of the transcript filed by White or the statement filed by the trial
court.



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      White raises the following issues on appeal:

           1. Was not the verdict as to robbery so contrary to the
           weight of the evidence as to render it unjust, where the
           testimony of the complainant regarding the theft of his
           phone was unreasonably tenuous and belied by the lack of
           physical evidence?

           2. Was not the evidence insufficient to sustain a conviction
           for robbery, theft, and receiving stolen property, where the
           evidence was insufficient to prove that a theft or an
           attempted theft had occurred?

           3. Was not the evidence insufficient to sustain a conviction
           for conspiracy, where the evidence was insufficient to
           prove the existence of any conspiratorial agreement with
           another?

White’s Br. at 3.

      Before we address the merits of White’s claims, we must first

determine the materials in the record that this Court may consider in

reaching our determination.         The Commonwealth contends that we may

consider not only the trial court’s Rule 1923 Statement, but also White’s

Rule 1923 Statement, and the notes of testimony from the preliminary

hearing,    which,   it   argues,   were   admitted   into   evidence   at   trial.

Commonwealth’s Br. at 2 n.1.

      Rule 1923 provides:

           If no report of the evidence or proceedings at a hearing or
           trial was made, or if a transcript is unavailable, the
           appellant may prepare a statement of the evidence or
           proceedings from the best available means, including his
           recollection. The statement shall be served on the
           appellee, who may serve objections or propose
           amendments thereto within ten days after service.
           Thereupon the statement and any objections or proposed
           amendments shall be submitted to the lower court for

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           settlement and approval and as settled and approved shall
           be included by the clerk of the lower court in the record on
           appeal.

Pa.R.A.P. 1923.4

       The only statement this Court may consider is the statement that the

trial court “settled and approved” and ordered that the clerk include in the

record.5 See Pa.R.A.P. 1923. Therefore, we may not consider White’s Rule

1923 Statement.         Further, this Court may not consider the preliminary

hearing transcript.      Although the trial court’s Rule 1923 Statement states
____________________________________________


       4
       This Court has stated the following regarding when a new trial is
appropriate due to the lack of transcripts:

           Where meaningful review is impossible and appellant is
           free from fault, a new trial may be granted. Meaningful
           review does not require, per se, a complete trial transcript.
           Rather, the court may provide either a complete trial
           transcript or an equivalent thereof. Rule 1923 does not
           contemplate that appellate counsel must single-handedly
           reconstruct the record. The theory that underlies Rule
           1923 is that a verbatim transcript of proceedings is not
           necessarily a condition precedent to meaningful appellate
           review, so long as the appellate court has an “equivalent
           picture” of what happened at trial. Further, no relief is due
           because counsel on appeal was not counsel at trial.
           Rather, appellate counsel is required to prepare a
           statement of the missing evidence from the best available
           means.

Commonwealth v. Harvey, 32 A.3d 717, 721-22 (Pa.Super. 2011)
(citations and internal quotation marks omitted).
       5
          In its Rule 1925(a) opinion, the trial court stated that it
supplemented White’s Rule 1923 statement with its own notes because
White’s “suggested statement lacked significant facts and testimony elicited
at trial.” 1925(a) Op. at 2.




                                           -7-
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that White moved for the admission of the preliminary hearing transcript

without objection, the Rule 1923 statement refers only to the part of the

transcript used to establish that the victim gave            prior inconsistent

testimony.6      The Commonwealth suggests that we may consider all

statements made at the preliminary hearing, regardless whether the

statements are consistent with trial testimony or whether the information

was admitted at trial. We disagree. The Commonwealth has not established

that the preliminary hearing testimony was admitted as substantive

evidence at trial pursuant to any exception to the rule excluding hearsay.

See Pa.R.E. 803, 804.         Accordingly, we will not consider the preliminary

hearing testimony on appeal.

       We will first address White’s claims that the Commonwealth failed to

present sufficient evidence to support his convictions.         We apply the

following standard when reviewing a sufficiency of the evidence claim:

“[W]hether 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.”

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003), aff’d,


____________________________________________


       6
       The trial court noted that the victim testified at trial that he had
owned the phone for only one day at the time of the robbery, and White’s
counsel showed the victim his testimony from the preliminary hearing, in
which he stated that he had had the phone for one month. Rule 1923 Stmt.
at 2.



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870 A.2d 818 (Pa. 2005) (quoting Commonwealth v. DiStefano, 782 A.2d

574 (Pa.Super. 2001)). In applying this standard, “we may not weigh the

evidence and substitute our judgment for the fact-finder.” Id.

      Further,   “the   facts    and    circumstances     established   by   the

Commonwealth need not preclude every possibility of innocence.” Lehman,

820 A.2d at 772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny

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.”           Id.

“The Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Id.

      In applying the above test, we must evaluate the entire record.

DiStefano, 782 A.2d at 582.        Further, “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.” Id.

      White claims that the evidence was insufficient to sustain the

convictions for robbery, theft, and receiving stolen property because the

Commonwealth failed to establish that he took, attempted to take, or

otherwise exercised control over the victim’s cell phone. White’s Br. at 15.

      To establish White was guilty of robbery, the Commonwealth was

required to establish that:     “in the course of committing a theft, he . . .

inflict[ed] bodily injury upon another or threaten[ed] another with or

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

3701(a)(iv). “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).     A person commits the crime of

“theft by unlawful taking” if he “unlawfully takes, or exercises unlawful

control over, movable property of another with intent to deprive him

thereof.”   18 Pa.C.S. § 3921(a).     To establish a person received stolen

property, the Commonwealth must establish that the person “intentionally

receives, retains, or disposes of movable property of another knowing that it

has been stolen, or believing that it has probably been stolen, unless the

property is received, retained, or disposed with intent to restore it to the

owner.”     18 Pa.C.S. § 3925(a).      “Receiving” is defined as “acquiring

possession, control or title, or lending on the security of the property.” 18

Pa.C.S. § 3925(b).

      White argues that the Commonwealth failed to establish that he took

the victim’s phone.    He notes that the police arrested him at the crime

scene, and the phone was never recovered.        He also claims the victim’s

testimony was unreliable because it was contradicted by the physical facts.

White’s Br. at 15.

      Viewing the record in the light most favorable to the Commonwealth

as the verdict winner, we conclude the Commonwealth presented sufficient

evidence to establish, beyond a reasonable doubt, that White took the

victim’s phone. The victim testified that he was listening to music on his cell

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phone when White approached him from behind, asked “what kind of phone

you got?,” and then struck him.                Rule 1923 Stmt. at 1-2.   The victim

testified that he then placed his phone in his pocket, and that White then

reached into the pocket and removed the phone. Id. at 2. Although the cell

phone was not recovered, the victim’s testimony provided sufficient evidence

from which a fact-finder could conclude, beyond a reasonable doubt, that

White took the victim’s cell phone.

       White next argues that the Commonwealth failed to provide sufficient

evidence to support the conspiracy conviction.            Although White raised this

claim in his supplemental Rule 1925(b) statement, the trial court’s Rule

1925(a) opinion does not address it.7             Based on the evidence in the trial

court’s Rule 1923 statement, we agree with White.

       Criminal conspiracy is defined 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
____________________________________________


       7
        Although the trial court permitted White to file a supplemental Rule
1925(b) statement following the court’s filing if its Rule 1923 Statement, the
court’s Rule 1925(a) opinion addressed only the issues raised in White’s
original Rule 1925(b) statement. The trial court, therefore, did not address
White’s allegation that the evidence was insufficient to support his
conspiracy conviction, which White raised for the first time in his
supplemental Rule 1925(b) statement.



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           (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. § 903. This Court has stated that:

           [c]ircumstantial evidence may provide proof of the
           conspiracy. The conduct of the parties and the
           circumstances surrounding such conduct may create a
           “web of evidence” linking the accused to the alleged
           conspiracy beyond a reasonable doubt.

Commonwealth v. Irvin, 134 A.3d 67, 75 (Pa.Super. 2016) (quoting

Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)). Further,

           [a]n agreement can be inferred from a variety of
           circumstances including, but not limited to, the relation
           between the parties, knowledge of and participation in the
           crime, and the circumstances and conduct of the parties
           surrounding the criminal episode. These factors may
           coalesce to establish a conspiratorial agreement beyond a
           reasonable doubt where one factor alone might fail.

Id. (quoting Perez, 931 A.2d at 708).

       In the trial court’s Rule 1923 Statement, the only references to

possible co-conspirators are that, after the theft, “the defendant and his co-

defendant” followed the victim when he walked over to speak with the officer

who had arrived on the scene, and that “[s]ome friends of the defendant

also came to the scene.”         Rule 1923 Stmt. at 2-3.   This is insufficient to

establish, beyond a reasonable doubt, that any agreement existed between

White and another person.8 We therefore vacate the conspiracy conviction.
____________________________________________


       8
        White’s Rule 1923 Statement included additional information
regarding a potential conspiracy, including that: (1) the victim testified that
(Footnote Continued Next Page)


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      White also claims that the verdict of guilty for the robbery conviction

was against the weight of the evidence.

      This court reviews a weight of the evidence claim for an abuse of

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “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.” Id. (quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa.

2000)). “Because the trial judge has had the opportunity to hear and see

the   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.” Id.

      A trial court should not grant a motion for a new trial “because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion.”            Clay, 64 A.3d at 1055.        “Rather,
                       _______________________
(Footnote Continued)

White and another male approached him; and (2) Officer Rios testified he
saw the victim, White, and White’s co-defendant on the corner, saw White
and his-co-defendant yell at the victim, and observed White lunge at the
victim. In partially adopting White’s Rule 1923 statement, the trial court
only included that Officer Rios testified that when the victim walked toward
him, White and his co-defendant followed. The trial court, however, did not
include the other references to the co-defendant. As a result, and because
the trial court did not address this sufficiency claim in its Rule 1925(a)
opinion, this Court cannot safely conclude that the trial court viewed these
facts as established at trial.



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‘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.’”         Id. (quoting

Widmer, 744 A.2d at 752). Courts have stated that “a new trial should be

awarded when the jury’s verdict is so contrary to the evidence as to shock

one’s sense of justice and the award of a new trial is imperative so that right

may      be   given   another   opportunity    to   prevail.”     Id.    (quoting

Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).

      White claims the verdict was against the weight of the evidence

because the victim’s testimony that White stole his phone was not credible,

noting the officers did not see White take the phone, White did not leave the

scene prior to his arrest, and the phone was not recovered. White’s Br. at

10-13.    However, the trial court as finder of fact was free to credit the

victim’s testimony. See Commonwealth v. Page, 59 A.3d 1118, 1130

(Pa.Super. 2013) (credibility determination “lies solely within the province of

the   factfinder”);   Commonwealth v.         DeJesus,   860    A.2d    102,   107

(Pa.Super. 2004) (“The weight of the evidence is exclusively for the finder of

fact, which is free to believe all, part, or none of the evidence, and to assess

the credibility of the witnesses.”). The trial court did not abuse its discretion

when it found the verdict was not against the weight of the evidence.

      Accordingly, we conclude that the Commonwealth presented sufficient

evidence to convict White of robbery, theft, and receiving stolen property

and that the trial court did not abuse its discretion when it found the verdict

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for robbery was not against the weight of the evidence.      However, we

conclude that the record as established by the trial court does not reflect

that the Commonwealth presented sufficient evidence to support the

conspiracy conviction. Because the trial court imposed concurrent sentences

for robbery and conspiracy, vacating the judgment of sentence for

conspiracy does not affect the overall sentencing scheme, and remand is not

necessary.    See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69

(Pa.Super. 2010) (finding remand not required when vacating judgment of

sentence would not disturb the overall sentencing scheme).

     Judgment of sentence for conspiracy vacated. Judgment of sentence

affirmed as to the convictions for robbery, REAP, simple assault, theft by

unlawful taking, and receiving stolen property.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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