J-S79010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KYLE CANTRELL,

                            Appellant                 No. 2864 EDA 2013


    Appeal from the Judgment of Sentence entered September 27, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0002695-2012



BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 16, 2014

       Kyle Cantrell (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of two counts of robbery and one count

each of possession of a firearm by a prohibited person, possession of a

firearm without a license, carrying a firearm on the public streets of

Philadelphia, and possessing an instrument of crime.1 We affirm.

       The trial court summarized the pertinent factual background as

follows:

             At approximately 11:40 p.m. on December 27, 2011, the
       victim, John Uhl, met [Appellant] around 13th and Porter Streets
       in South Philadelphia to lend Appellant a “little bit of money.” As
       they were walking, [Appellant] warned the victim that he had a
____________________________________________


1
 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 6105(a)(1), 6106(a)(1), 6108, and
907.



* Retired Senior Judge assigned to Superior Court.
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      gun and he ordered the victim to give him all of his money. The
      victim handed [Appellant] $910. [Appellant] fled but the victim
      chased him nonetheless.          The victim reached [Appellant].
      Brandishing the gun, [Appellant] ordered the victim to stop and
      walk away. [Appellant] threatened to shoot him and “fill him up
      with lead” if the victim did not walk away.

             Calling 911 to report the robbery, the victim described
      [Appellant]. Police officers arrived at Shunk and Broad Streets,
      one block from the robbery, and spotted [Appellant]; one of the
      officers exited her vehicle, walking toward [Appellant,] who then
      fled. While in pursuit, the officer saw [Appellant] throw a gun
      into a concrete flower pot. Once [Appellant] was apprehended a
      few minutes later, the gun was recovered.

             Other officers in the area came to the victim, and brought
      him to where [Appellant] was being detained.           The victim
      positively identified [Appellant,] who was placed under arrest.

Trial Court Opinion, 6/30/14, at 3 (citations to notes of testimony omitted).

      Appellant was charged with the aforementioned crimes.        A jury trial

commenced on June 25, 2013, at the conclusion of which the jury rendered

its convictions.

      Following a sentencing hearing on September 27, 2013, the trial court

sentenced Appellant to a term of imprisonment of 7 to 14 years for robbery,

followed by 5 to 10 years for possession of a firearm by a prohibited person,

for a total of 12 to 24 years of imprisonment. Concurrent to the 12 to 24

year sentence, the trial court imposed sentences of 3½ to 7 years for

possession of a firearm without a license, 1 to 2 years for carrying a firearm

on the public streets of Philadelphia, and 1 to 2 years for possessing an

instrument of crime.   No post-sentence motions were filed. Appellant filed a




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notice of appeal on October 1, 2013. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant presents four issues for our review:

   1. Whether Appellant is entitled to an arrest of judgment because
      there was insufficient evidence to support his conviction of
      Robbery (F1) in this case since the Commonwealth failed to
      prove each and every element of the crime beyond a reasonable
      doubt, specifically, the Commonwealth failed to prove that the
      Appellant, during the course of a theft, inflicted serious bodily
      injury or threatened to inflict serious bodily injury on another
      where the alleged complainant stated that he had no recollection
      of the incident and the Commonwealth failed to present
      sufficient admissible evidence on the charge of Robbery (F1)?

   2. Whether Appellant is entitled to an arrest of judgment because
      there was insufficient evidence to support Appellant’s conviction
      of Robbery (F2) where the Commonwealth failed to prove each
      and every element of the crimes beyond a reasonable doubt,
      specifically, the Commonwealth failed to prove that the Appellant
      during the course of a theft, inflicted bodily injury upon another
      or threatened another with or intentionally put him in fear of
      immediate bodily injury where the alleged complainant stated
      that he had no recollection of the incident and the
      Commonwealth failed to present sufficient admissible evidence
      on the charge of Robbery (F2)?

   3. Whether the evidence was insufficient as a matter of law to
      prove the crimes of possession of a firearm by a prohibited
      person, persons not to possess a firearm, carrying a firearm
      without a license and possessing an instrument of crime beyond
      a reasonable doubt where the alleged complainant stated he had
      no recollection of the events and the Commonwealth presented
      no sufficient admissible evidence that the gun recovered by the
      Philadelphia Police was ever possessed by Appellant?

   4. Whether [A]ppellant is entitled to a new trial as the verdict was
      not supported by the greater weight of the evidence?


Appellant’s Brief at 4-5.



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      Appellant’s first two sufficiency claims pertaining to his robbery

convictions are interrelated.    Appellant’s Brief at 10-15.     Therefore, we

address them together.


      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the evidence at trial need not preclude
      every possibility of innocence, and the fact-finder is free to
      resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of
      the evidence, the fact-finder is free to believe all, part or none of
      the evidence. For purposes of our review under these principles,
      we must review the entire record and consider all of the
      evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).

      To sustain Appellant’s conviction for robbery (serious bodily injury),

the Commonwealth was required to prove that in the course of committing a

theft, Appellant “threaten[ed] another with or intentionally put him in fear of

immediate serious bodily injury.”       18 Pa.C.S.A. § 3701(a)(1)(ii). “The

evidence is sufficient to convict a defendant of robbery under this section if

the evidence demonstrates aggressive actions that threatened the victim’s

safety. The court must focus on the nature of the threat posed by an

assailant and whether he reasonably placed a victim in fear of immediate

serious bodily injury. Additionally, this Court has held that the threat need

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not be verbal.” Commonwealth v. Jannett, 58 A.3d 818, 822 (Pa. Super.

2012) (citations and internal quotations omitted). “Serious bodily injury” is

defined as “[b]odily injury which creates a substantial risk of death or which

causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.

      To sustain a conviction for robbery (immediate bodily injury), the

Commonwealth was required to demonstrate that in the course of

committing a theft, Appellant “inflict[ed] bodily injury upon another or

threaten[ed] another with or intentionally put[] him in fear of immediate

bodily injury....” 18 Pa.C.S.A. § 3701(a)(1)(iv).

      Appellant argues that at trial, the Commonwealth presented testimony

that when Appellant initially encountered the victim and demanded his

money, Appellant did not threaten the victim with a gun. Appellant’s Brief at

10-13.   Appellant asserts that only after the victim pursued Appellant did

Appellant point the gun at him.        Therefore, Appellant maintains that the

threat   with   the   gun   occurred   after   the   theft,   and   therefore   the

Commonwealth failed to demonstrate that Appellant threatened the victim or

put him in fear of serious bodily injury or immediate bodily injury “in the

course of committing a theft”.          Moreover, Appellant argues that his

statement “I have a gun”, which Appellant made before the victim handed

over his money, did not constitute a “threat”, and that any threatening

actions by Appellant subsequent to obtaining the victim’s money were


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triggered by the victim’s pursuit of Appellant. Accordingly, Appellant argues

that because he did not threaten the victim “in the course of committing the

theft”, the evidence was insufficient to sustain his robbery convictions.

      18 Pa.C.S.A. § 3701(a)(2) provides:

      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.

(emphasis added).

      Thus, when Appellant fled with the victim’s money, and the victim

pursued him, Appellant’s actions in pointing a gun at the victim occurred “in

the course of committing the theft”. The robbery was one continuous event,

beginning when Appellant demanded the victim’s money and fled with it, and

continuing when the victim chased Appellant for approximately a block and a

quarter; the theft ultimately culminated in Appellant pointing a gun at the

victim and halting the victim’s pursuit.     N.T., 6/25/13, at 95-123.      We

therefore agree with the trial court that the evidence was sufficient to

demonstrate that Appellant threatened the victim with a gun during the

commission of a theft to support Appellant’s robbery convictions.

      In his third issue, with regard to Appellant’s convictions for possession

of a firearm by a     prohibited person, possession of a firearm without a

license, and possessing an instrument of crime, Appellant contends that the

Commonwealth failed to present sufficient evidence to prove that he had

possession of a firearm, and that the evidence was insufficient to support the


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firearm convictions because at trial the victim claimed to have no

recollection. Appellant’s Brief at 14-15. We find no merit to this claim. As

the trial court explained:

      The jury properly heard [the victim’s] preliminary hearing
      testimony as substantive evidence in which [the victim] stated
      that [Appellant] took all $910 that the victim had on him, and
      then threatened him with a gun when the victim tried to get it
      back. Viewed in the light most favorable to the Commonwealth,
      the evidence overwhelmingly demonstrates that [Appellant] was
      guilty beyond a reasonable doubt.

                                        ***

      [Appellant] told the victim he had a gun, pulled it out and
      pointed it at [the victim] during the course of the robbery.
      Shortly thereafter, while fleeing from police, [Appellant] threw
      the gun into a flower pot. [Appellant] stipulated that he had
      been convicted of Possession with Intent to Deliver under 35
      P.S. § 780-113(a)(1). [Appellant] also stipulated that he had no
      valid license to carry a firearm. Together, the evidence satisfied
      each of the elements on all three weapons charges.

Trial Court Opinion, 6/30/14, at 4, 5-6 (citations to notes of testimony

omitted).

      Although Appellant argues that the testimony of the Commonwealth’s

witnesses “so strained reason and credibility” that a jury could not have

relied on it to support a guilty verdict, this challenge to the credibility of

witnesses concerns the weight, not the sufficiency, of the evidence. Here,

Appellant failed to preserve a weight of the evidence claim with the trial

court at any time before sentencing or in a post-sentence motion as required

by Pa.R.Crim.P. 607(a).      See Commonwealth v. Lofton, 57 A.3d 1270,

1273 (Pa. Super. 2012) (“[A] weight of the evidence claim must be

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preserved either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607.        Failure to

properly preserve the claim will result in waiver, even if the trial court

addresses the issue in its opinion.”). Accordingly, this claim is waived, and

Appellant’s fourth issue expressly challenging the weight of the evidence is

also waived for failure to preserve it in a post-sentence motion.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




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