J-S04005-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
STEVEN WILLIAM SHAWGO,                  :
                                        :
                 Appellant              :   No. 1729 WDA 2014

           Appeal from the Judgment of Sentence April 29, 2014,
                Court of Common Pleas, Venango County,
             Criminal Division at No. CP-61-CR-0000222-2013

BEFORE: BOWES, OLSON AND STRASSBURGER*, JJ.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 21, 2016

      Steven William Shawgo appeals from the judgment of sentence of ten

to twenty years imprisonment, which was imposed following his convictions

for robbery and theft by unlawful taking.   For the reasons that follow, we

affirm.

      On December 11, 2011, as Kaleigh Zerres was closing the Dollar

General Store in Cranberry Township, Venango County, a man wearing a

mask and hooded sweatshirt placed a gun in her face and threatened to

shoot her if she did not give him money from the cash register.        N.T.,

3/17/14, at 34-37.   Ms. Zerres removed $283 from the cash register and

gave it to the assailant, who then fled. Id. at 37-38; N.T., 3/18/14, at 29.

Store video equipment captured the robbery, which transpired over

seventeen seconds. N.T., 3/18/14, at 30.




*Retired Senior Judge assigned to the Superior Court.
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     At approximately 4:00 p.m. on December 18, 2011, a man wearing a

mask and hooded sweatshirt entered the Kwik-Fill convenience store in

Cranberry Township, Venango County, and aimed a gun at the station

attendant, Dennis Kucera.     N.T., 3/17/14, at 70-72.      Pursuant to the

robber’s demand, Mr. Kucera handed over approximately $500, two packs of

cigarettes, and a lighter. Id. at 72; N.T., 3/18/14, at 74. As the masked

man left the store, Mr. Kucera saw him enter a 2000-2002 orange Dodge

Neon with a Pennsylvania license tag that included the letters “H” and “K” or

“M” and “K.”1 Id. at 68-72. Mr. Kucera attributed his ability to identify the

make and model of the vehicle to his vast knowledge of cars, indicating that

he had subsequently enrolled in the NASCAR Technical Institute in North

Carolina. Id. at 76. Security cameras at the Kwik-Fill captured this robbery

on video that was viewed by the jury. Id. at 85-92.

     On May 30, 2013, the Commonwealth charged Appellant with two

counts each of robbery and theft by unlawful taking for the holdups at the

Dollar General store and the Kwik-Fill gas station.     Although the mask

prevented Ms. Zerres and Mr. Kucera from testifying at trial that Appellant

was the perpetrator, the Commonwealth offered circumstantial evidence to

identify him. Mary Jo Anderson testified that Appellant was renting a room

in the home she owned with her husband in December 2011. On occasion,


1
   At the preliminary hearing in May 2013, Mr. Kucera testified that he saw
an “H” and “K.” N.T., 3/17/14, at 82. At trial in March 2014, Mr. Kucera
testified that the license tag included an “M” and “K.” Id. at 78.


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they would permit Appellant to borrow their car, which was a 2000 burnt

orange Dodge Neon.      Id. at 106-08.    Although Ms. Anderson could not

remember exact dates, she testified that, on occasion, Appellant failed to

return the vehicle in time for her to go to work. When this occurred, she

would “burn his phone” to get in touch with him. Id. at 110. Trooper Brian

O’Toole testified that Appellant’s cell phone records revealed as many as

thirty text messages and numerous phone calls between him and Ms.

Anderson on December 18, 2011, the date of the Kwik-Fill robbery.2 N.T.,

3/18/14, at 74. Mr. Kucera later identified the Andersons’ orange Neon as

the vehicle in which he witnessed the robber flee from the Kwik-Fill. N.T.,

3/17/14, at 76.   The Pennsylvania license tag on the vehicle included the

letters “H” and “X,” similar to the “H” and “K” that Kucera testified at the

preliminary hearing he had observed. Id. at 82; N.T., 3/18/14, at 34-35.

      Ms. Anderson also provided police with a gray hooded sweatshirt

belonging to Appellant that she found stuffed in a box in the basement of

her home.     N.T., 3/17/14, at 114.      Kimberly Hale, Appellant’s friend,

testified that she advised the police that a pair of tennis shoes belonging to

Appellant could be found at 41 East Bissell Street. N.T., 3/17/14, at 143. At


2
   Similarly, Jodi Davis, an acquaintance of Appellant, testified that in or
around December 2011, she loaned him her car. She also could not
remember a specific date, but did say that he was delinquent in returning it
to her and that she had to call him several times to retrieve it. N.T.,
3/17/14, at 129-30. Trooper O’Toole testified that phone records showed
multiple texts and calls between Ms. Davis and Appellant on December 11,
2011, the date of the Dollar General robbery. N.T., 3/18/14, at 73-74.


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that location, the police found a pair of white tennis shoes consistent with

the shoes worn by the perpetrator as depicted on the video of the Kwik-Fill

robbery. N.T., 3/18/14, at 55-59.

      Finally, the Commonwealth offered the testimony of Faron Tucker, who

met Appellant in the Venango County Jail while he was awaiting sentencing

on robbery convictions.    Id. at 97.    Mr. Tucker testified that Appellant

admitted to him, inter alia, that he had committed the Dollar General and

Kwik-Fill robberies while wearing a mask and hooded sweatshirt, that he had

been living with someone who owned a Dodge Neon at the time of the

robbery, and that he had confessed his crimes to Ms. Hale. Id. at 99-108.

      On March 20, 2014, a jury found Appellant guilty of robbery and theft

by unlawful taking in connection with the Kwik-Fill gas station, but not guilty

of the charges connected to the Dollar General robbery.        The trial court

sentenced Appellant to ten to twenty years incarceration on the robbery

conviction3 and imposed no additional sentence on the theft conviction due

to merger. Appellant’s post-sentence motions were denied.

      On appeal, Appellant presents two issues for our consideration and

determination:



3
    This sentence reflects a mandatory minimum pursuant to 42 Pa.C.S. §
9714, as the robbery conviction constituted a third conviction for a crime of
violence. N.T., 4/29/14, at 21-23. Application of this mandatory minimum
is not constitutionally infirm. Commonwealth v. Miller, 102 A.3d 988, 995
n.5 (Pa.Super. 2014) (Alleyne v. United States, 133 S.Ct. 2151 (2013)
allows for mandatory minimum sentencing based on fact of prior conviction).


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        1.   Does a prosecutor’s false statements in closing
             argument regarding the contents of a criminal
             complaint and affidavit of probable cause constitute
             prosecutorial misconduct when said statement was
             made with the intention to and had the effect of
             improperly bolstering the credibility of a witness?

        2.   Was the guilty verdict for robbery and theft by
             unlawful taking against the weight of the evidence
             when the prosecution relied on a mishmash of weak
             circumstantial items to connect [Shawgo] to the
             crime?

Appellant’s brief at 4.

        For his first issue on appeal, Appellant contends that false statements

during the Commonwealth’s closing argument amounted to prosecutorial

misconduct requiring a new trial. In support thereof, he offers the following

argument.     Mr. Tucker testified that Appellant told him that he parked his

car across the street from the Kwik-Fill, N.T., 3/18/14, at 105, but all of the

witnesses at trial testified that the robber parked his car in front of the Kwik-

Fill.   Through cross-examination of Mr. Tucker as well as the direct

testimony of defense witness Tyler Rozanski, Appellant attempted to prove

that while in the Venango County Jail, Mr. Tucker used his access to

Appellant’s legal papers to obtain information about the charges.         Id. at

112-14, 121-24. As set forth in the affidavit of probable cause attached to

the criminal complaint, a witness who did not testify at trial had indicated

that Appellant parked his car across the street prior to entering the Kwik-Fill.

During the Commonwealth’s closing argument, the prosecutor admitted that




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Mr. Tucker had been mistaken about the car being parked across the street,

but denied that Mr. Tucker could have obtained this information from

Appellant’s legal paperwork because        it was not contained in those

documents. Closing Argument, 3/20/14, at 13, 23 (“It didn’t come from the

paperwork … [b]ecause in the paperwork it’s never been suggested the car

was parked across the street.”).

      We find that Appellant failed to preserve this issue for appellate review

because his counsel did not assert a contemporaneous objection to the

prosecutor’s above-referenced remarks.      As our Supreme Court has held

repeatedly, the lack of a contemporaneous objection constitutes a waiver of

any challenge to a prosecutor's closing statement.       Commonwealth v.

Rivera, 983 A.2d 1211, 1229 (Pa. 2009); Commonwealth v. Powell, 956

A.2d 406, 423 (Pa. 2008); Commonwealth v. Butts, 434 A.2d 1216, 1219

(Pa. 1981).   Counsel for Appellant raised prosecutorial misconduct for the

first time in a post-sentence motion. As a result, the issue is waived.

      Next Appellant argues that the jury’s verdict was against the weight of

the evidence. Our standard of review in this context is extremely limited:

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. [Commonwealth v.] Widmer,
      744 A.2d [745,] 751–52 [Pa. 2000]; Commonwealth v.
      Brown, [] 648 A.2d 1177, 1189 ([Pa.] 1994). A new trial
      should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Widmer, 744 A.2d at 752.
      Rather, “the role of the trial judge is to determine that



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     ‘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. [] at 752. It has often
     been 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.” Brown, 648 A.2d
     at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           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. Brown, 648 A.2d at 1189. 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.          Commonwealth v.
          Farquharson, [] 354 A.2d 545 ([Pa.] 1976). 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.

    Widmer, 744 A.2d [745,] at 753.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa.Super. 2014)

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013)).

     Appellant contends that the jury’s verdict was based upon the

questionable testimony from Mr. Tucker and a “mishmash of weak

circumstantial items with minimal connection to [Appellant].”      Appellant’s

brief at 10. These items included the white tennis shoes that were not his




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size and that bore no identifying marks, and the gray hooded sweatshirt,

which was nondescript and that could have been purchased in any

department store. Id. at 10-11. Finally, Appellant argues that Mr. Kucera

correctly identified only one digit of the license plate number and could not

provide any unique characteristics of the vehicle other than its make and

model. According to Appellant, the Andersons’ Dodge Neon would get stuck

in second gear, making it an unsuitable getaway vehicle, and the police

never checked PennDOT records for other similar vehicles in the area. Id. at

11.

      We conclude that the trial court did not abuse its discretion in denying

Appellant’s weight claim.    With respect to Mr. Tucker’s credibility, it is not

this Court’s function to overturn a jury’s credibility determinations.      See,

e.g., Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (“A

determination of credibility lies solely within the province of the factfinder.”).

As for Appellant’s attempt to undermine the weight of the Commonwealth’s

evidence identifying him as the masked perpetrator of the robberies, the

jury was free to believe all, part, or none of the evidence.          See, e.g.,

Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 2006). Ms.

Hale and Mr. Tucker linked Appellant to the white tennis shoes, and Ms.

Anderson testified that Appellant had complete access to the basement

where the gray hooded sweatshirt was found. The jury was also within its

province to rely upon Mr. Kucera’s knowledge of automobiles in crediting his



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identification of the Andersons’ burnt orange Dodge Neon as the car he saw

speeding away from the Kwik-Fill robbery.       Appellant’s counsel thoroughly

cross-examined the Commonwealth’s witnesses on these points and called

defense witnesses to dispute their accounts.4

      Finally, we note that while the jury found Appellant guilty of the Kwik-

Fill robbery, it found him not guilty of the same crime at the Dollar General

store. Thus, it is clear that the jury critically reviewed and carefully weighed

all of the evidence presented.     The trial court plainly did not abuse its

discretion in finding that the jury’s verdict was not so contrary to the

evidence as to shock one's sense of justice.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/21/2016




4
  Appellant’s fiancée, Jeanette Turner, testified as an alibi witness for
Appellant, placing him elsewhere on December 18, 2011, the date of the
Kwik-Fill robbery. N.T., 3/18/14, at 16-24.


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