J.A22044/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
ANDREW S. BAUMGARTNER,                      :
                                            :
                          Appellant         :     No. 2250 MDA 2013


           Appeal from the Judgment of Sentence September 12, 2013
               In the Court of Common Pleas of Dauphin County
               Criminal Division No(s).: CP-22-CR-0000791-2012

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 29, 2014

        Appellant, Andrew S. Baumgartner, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, challenging

the weight of evidence for his conviction of robbery.1 We affirm.

        Because Appellant’s issue on appeal concerns the weight of the

Commonwealth’s witnesses’ testimony at trial, we review it in detail.    We

also note that Appellant appeared pro se at the jury trial with stand-by

counsel.

        Nicholas Bowshot testified to the following.       On the morning of

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
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November 17, 2011, he was getting into his car when he came across

Appellant, whom he had known for years. Appellant said he wanted to get

marijuana, and Bowshot called William Foster and requested “a quarter

pound” of marijuana for Appellant.    N.T. Jury Trial, 9/10-12/13, at 130.

Bowshot drove Appellant to Foster’s house. Upon parking outside, Appellant

told Bowshot “he was going to rob” Foster, while lifting his hoody sweatshirt

and showing what looked like a firearm. Id. at 135-37.

     Bowshot further testified to the following.   He and Appellant entered

Foster’s home and Foster handed Appellant four bags of marijuana.

Appellant put the marijuana in his back pocket and told Bowshot “to go to

the car to get the money.” Id. at 141. Bowshot went to the vehicle and

looked in the glove box, where he had seen Appellant “put something.” Id.

at 144. When he turned around, Appellant was walking towards him, while

Foster and his fiancée Kelsey Hatt were on the porch, “look[ing] scared.” 2

Id. at 147.    Appellant entered Bowshot’s vehicle, took the gun from his

waistband and placed it on his lap, and told Bowshot to “F-ing go now.” Id.

at 149. Bowshot drove Appellant five to ten minutes and let him out of the

car. Appellant threw a bag of marijuana to Bowshot and said, “This is for

your troubles.” Id. at 150. On cross-examination, Bowshot stated he had

pending charges of robbery and conspiracy for his involvement. Id. at 161.

2
  Bowshot testified that he could not completely remember whether both
Foster and Hatt were on the porch, or if Foster was on the porch while Hatt
remained inside the screen door. N.T. at 147.



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When asked why he was testifying for the Commonwealth, Bowshot replied,

“Honestly, in the hopes of getting a better sentence.        I wasn’t promised

anything.”   Id. at 161.   Bowshot also denied calling Foster on November

15th “to set [up the sale] for the 17th.” Id. at 157.

      At trial, William Foster testified to the following.   On November 15,

2011, he received a phone call from Bowshot asking for marijuana for a

friend. Id. at 50. Although Foster and Appellant “grew up about ten houses

away” from each other and Foster had seen Appellant before, Foster did not

know Appellant personally. Id. at 52, 56. Two days later, on the morning

of November 17th, Bowshot again called and said that he and his friend,

Appellant, were on their way to his house.3     Foster’s fiancée, Kelsey Hatt,

was upstairs. Upon entering Foster’s house, Appellant directed Bowshot to

retrieve the money from the car. After Bowshot left the house, Foster gave

Appellant one of the four bags of marijuana to examine. Appellant examined

the marijuana and said he would take all of it, and Foster gave him the

remaining three bags and said the price was $1,600. Appellant took a gun

with his left hand, put it to Foster’s nose for a minute and a half to two

minutes, and said “It’s all part of the game.” Id. at 61-63, 65. When Hatt

appeared on the stairs, Appellant “put the gun to his side and tried to cover

it with his sweater,” and walked out. Id. at 63-64. Foster testified that the


3
  Foster testified that subsequently, there was a knock at his door and then
a second call from Bowshot to tell Foster they were there. N.T. at 54-55.



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gun was a nine millimeter, was real, and had a metallic sheen. Id. at 65.

Foster denied having any guns in the house or displaying any gun to

Appellant. Id. at 66. Foster and Hatt followed Appellant outside, and Foster

saw Appellant “adjusting his firearm on the left side.” Id. at 71.

       Foster further testified to the following. As a result of the investigation

of this matter, he was charged with possession of drug paraphernalia,

possession of marijuana, and falsifying a police report. Id. at 75. The false

report was “that there was a box that had the hundred dollars in it and .. .

3.5 grams of marijuana.”       Id. at 74.    Foster gave this false information

“[b]ecause in the beginning [he] didn’t want to cooperate with the

police[ and] was afraid” because he was selling marijuana and there was a

gun involved. Id.

       At trial, Kelsey Hatt testified to the following. On November 17, 2011,

she was upstairs at home and heard voices when people entered.             Id. at

194.    She then became concerned because she did not hear any activity

downstairs, and the “complete silence . . . struck [her] as odd.” Id. at 197.

Hatt put a steak knife in her pocket and went downstairs. At the bottom of

the stairs she saw “Appellant sticking something [black and shiny] in his

pants,” which she thought was a gun. Id. at 199. Hatt said, “What’s going

on?” Id. at 201. Appellant said, “It’s all part of the game. . . . Are we

cool? Are we cool?” Id. at 201. Foster replied, “No, this is messed up.”

Id.    After Appellant left, Hatt and Foster followed him out the front door.



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Hatt testified that she was scared and hysterical from the time she reached

the downstairs.    Id. at 201, 206, 207, 209.   After Appellant and Bowshot

drove away, she and Foster both started crying.       Id. at 209.   Appellant

walked out of the house to Bowshot’s car and adjusted something on his left

side.     Hatt initially told police the amount of marijuana was 3.5 grams,

“significantly less than” the actual amount, because this amount was “a cut”

and she believed she would be in less “trouble for saying that amount.” Id.

at 212.

        At trial, Appellant testified to the following. On November 17, 2011,

while walking, he saw Nicholas Bowshot and asked him for a ride.       Id. at

272. Appellant asked where he could get marijuana, and Bowshot replied he

would get it from Foster and that the marijuana would cost $1,200.

Appellant showed Bowshot the $1,200 he had and Bowshot called Foster.

“[O]n the way up there,” Bowshot told Appellant that he was “selling a lot of

weed for” Foster and Foster was going to “break [him] off.”      Id. at 274.

Upon entering Foster’s house, Bowshot had the money. When Foster gave

Appellant one bag of marijuana, and Appellant told Bowshot to give Foster

the money. Id. at 273. Bowshot patted his pockets “like, ‘Oh, where’s it

at?’”   Id. at 274.   Although Appellant knew the money was in Bowshot’s

pocket, Appellant said, “You left it in the car.” Id. Bowshot went outside

and Foster gave Appellant the three other bags of marijuana, which

Appellant put in his pocket.   Appellant asked what was taking Bowshot so



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long, Foster said he did not know, and Appellant walked toward the door. At

this point, Hatt came downstairs and she and Appellant exchanged

greetings. They all went outside, and Bowshot “was just turning from inside

the car to look out” because, perhaps, he heard them coming out.       Id. at

275.    Bowshot said he did not know where the money was, but Appellant

knew it was in Bowshot’s pocket.         Appellant entered the car and asked,

“[W]hat’s going on.”       Id. at 275.    Bowshot asked if Appellant had the

marijuana; when Appellant said yes, Bowshot said, “[F—] it, we just gonna

pull off.” Id. Appellant said, “Cool,” and Bowshot drove away. Id. at 275-

76.    Appellant admitted that he did not pay for the marijuana but denied

having a firearm. Id. at 276, 278, 279.

        On September 10, 2013, the jury found Appellant guilty of robbery,

conspiracy4 to commit theft, and persons not to possess a firearm. 5       On

September 12, 2013, the court imposed an aggregate sentence of five to ten

years’ imprisonment.6

        On September 19, 2013, Appellant timely filed a post-sentence motion




4
    18 Pa.C.S. § 903(c).
5
    18 Pa.C.S. § 6105(a)(1).
6
  The court imposed the following sentences, all to run concurrently: five to
ten years’ imprisonment for robbery, two years for conspiracy to commit
theft, and one and a half to three years for persons not to possess a firearm.




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challenging the weight of evidence for robbery.7 On December 6, 2013, the

trial court denied the motion. Appellant timely filed a notice of appeal and a

court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

         Whether the trial court abused its discretion in denying
         Appellant’s post-sentence motion because the jury verdict
         was so contrary to the weight of the evidence as to shock
         one’s sense of justice where all relevant witnesses gave
         inconsistent, conflicting, and false testimony, and the
         codefendant admitted that he was testifying in order to
         receive a more favorable sentence?

Appellant’s Brief at 5.8        Appellant contends the testimony of Nicholas

Bowshot,    William   Foster,    and    Kelsey   Hatt   was   so    unreliable   and

contradictory that the verdict was purely conjecture and without reason.

Appellant   cites   their   allegedly   inconsistent    testimony   regarding    the

description of the gun, from which side of his pants he allegedly retrieved

the gun, which hand held the gun, and whether he had a gun at all.

Appellant maintains that police never recovered a gun.         He further argues

Bowshot testified in order to receive a more favorable sentence on his own

pending charges. Appellant also cites the fact that Foster and Hatt initially

7
  In his post-sentence motion, Appellant also raised a weight of evidence
argument for persons not to possess a firearm. However, Appellant has not
challenged it here.
8
  Appellant preserved the weight of the evidence issue because he previously
raised the issue in his post-sentence motion. See Commonwealth v.
Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).



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provided false information to the police about the amounts of marijuana and

money involved. We find no relief is due.

      Our standard for reviewing a weight of the evidence claims is well

established:

              [O]ur role is not to consider the underlying question
              of whether the verdict was against the weight of the
              evidence. Rather, we are to decide if the trial court
              palpably abused its discretion when ruling on the
              weight claim. When doing so, we keep in mind that
              the initial determination regarding the weight of the
              evidence was for the factfinder. The factfinder was
              free to believe all, some or none of the evidence.
              Additionally, a court must not reverse a verdict
              based on a weight claim unless that verdict was so
              contrary to the evidence as to shock one’s sense of
              justice.

           “An abuse of discretion is not a mere error in judgment
           but, rather, involves bias, ill will, partiality, prejudice,
           manifest unreasonableness, or misapplication of law.”

Commonwealth v. Kane, 10 A.3d 327, 332-33 (Pa. Super. 2010) (citations

omitted).    “As an appellant court, we cannot substitute our judgment for

that of the finder of fact.” Commonwealth v. Rabold, 920 A.2d 857, 860

(Pa. Super. 2007).

      Appellant was convicted under the following subsection of the robbery

statute:

             (1) A person is guilty of robbery if, in the course of
           committing a theft, he:

                                   *    *    *

                (ii) threatens another with or intentionally puts him in
              fear of immediate serious bodily injury[.]


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See 18 Pa.C.S. § 3701(a)(1)(ii).

         For the purposes of subsection 3701(a)(1)(ii), the proper
         focus is on the nature of the threat posed by an assailant
         and whether he reasonably placed a victim in fear of
         “immediate serious bodily injury.” The threat posed by the
         appearance of a firearm is calculated to inflict fear of
         deadly injury, not merely fear of “serious bodily injury.” A
         fact finder is entitled to infer that a victim was in mortal
         fear when a defendant visibly brandished a firearm.

Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000)

(citations omitted). “Moreover, the statute instructs that in determining the

grade of the felony we focus on the intent or act of the defendant and not

the subjective state of mind of the victim.”    Commonwealth v. Thomas,

546 A.2d 116, 119 (Pa. Super. 1988) (en banc).

      In the instant case, the trial court opined:

          Although discrepancies existed as to which hand
          [Appellant] held the gun, and as to whether the gun was
          plastic and dull (testimony of Mr. Bowshot), or shiny and
          metal (testimony of Mr. Foster and Ms. Hatt), the jury
          evidently chose to believe their testimony that [Appellant]
          had a gun nonetheless.          Furthermore, although Mr.
          Bowshot testified that the gun looked “[k]ind of” dull and
          plastic, he also testified that he was not familiar with
          pistols or firearms. Ms. Hatt also admitted that she was
          not familiar with guns. Mr. Bowshot also testified that he
          was not sure what side of [Appellant’s] body the gun was
          on. However, Mr. Bowshot, Mr. Foster and Ms. Hatt all
          unequivocally testified that they were sure that [Appellant]
          had a gun.
Trial Ct. Op., 12/06/13, at 4 (citations to trial transcript omitted).

      Furthermore, Foster and Hatt’s actions of following Appellant outside is

not determinative, as the robbery statute focuses on Appellant’s actions and



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intent, and not Foster’s and Hatt’s subjective states of mind. See Thomas,

546 A.2d at 119.      Additionally, Hatt testified that she was scared and

hysterical during the incident, and that after Appellant left, she and Foster

cried. Both Foster and Hatt admitted to providing false information to the

police due to concerns they would be in trouble because of the marijuana

and gun. Finally, the mere fact that a gun was brandished was sufficient for

the jury to infer that Foster and Hatt were in mortal fear.    See Hopkins,

747 A.2d at 914.    With regards to Bowshot’s motivation for testifying, he

stated “wasn’t promised anything.”      N.T. at 161.    The jury was “free to

believe all, part or none of” the Commonwealth’s witnesses’ testimony and

to determine their credibility. See Kane, 10 A.3d at 332.

      Finally, we consider Appellant’s contention that Foster and Hatt never

called the police themselves, but instead called their friend Stewart, which

“led to a confrontation” in which “Stewart pull[ed] a gun on Bowshot.”

Appellant’s Brief at 16.     Appellant offers no explanation of how any

confrontation between Stewart and Bowshot is relevant to his issue on

appeal, and therefore no relief is due on this claim.

      We hold the trial court did not abuse its discretion in denying relief on

Appellant’s weight of the evidence claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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