J-S77034-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                   Appellee            :
                                       :
                 v.                    :
                                       :
TERON UTSEY,                           :
                                       :
                   Appellant           :    No. 1676 EDA 2014


       Appeal from the Judgment of Sentence Entered April 28, 2014,
           in the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0003508-2012

BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 05, 2015

      Teron Utsey (Appellant) appeals from the judgment of sentence

entered on April 28, 2014, following his conviction for burglary and

conspiracy to commit robbery. We affirm.

      The trial court summarized the underlying facts of this matter as

follows:

            Appellant’s convictions arose out of an early morning
      brutal home invasion. On March 26, 2011, Appellant and several
      co-conspirators agreed that they would ste[a]l money and pills
      from the victim, Scott Hopper, at his residence located at 145
      East Moreland Avenue, Hatboro, Montgomery County. Appellant
      was armed with a semi-automatic gun and a co-conspirator was
      armed with a crow-bar. The victim sustained serious injuries.

             On January 22, 2014, Appellant’s trial commenced. At
      trial, the Commonwealth presented the testimony of two
      investigating police officers, Sergeant Mark Ru[e]gg and
      Detective Sergeant Cameron Goold[;] the victim, Scott
      Hopper[;] and two of Appellant’s co-conspirators, Michael


* Retired Senior Judge assigned to the Superior Court.
J-S77034-14


     Wroblewski ([Wroblewski]) and Troy Schussler ([Schussler]).
     After the evidence was presented, the jury returned a verdict of
     guilty of burglary and conspiracy, and not guilty of robbery,
     terroristic threats and firearms not to be carried without a
     license.

           On April 28, 2014, [the trial court] sentenced Appellant. A
     timely post-sentence motion was filed, and ultimately denied on
     May 8, 2014. This appeal followed on May 28, 2014.

Trial Court Opinion, 6/16/2014, at 1-2.

     Appellant presents the following issues for our consideration:

     [1.] Whether the evidence presented at trial was insufficient as
          a matter of law to establish beyond a reasonable doubt
          that … Appellant entered the premises of Scott Hopper
          with the intent to commit a crime therein and /or the
          weight of the evidence presented demonstrated a
          reasonable doubt to whether [Appellant] had committed
          the crimes charged and the court committed an error of
          law and abuse of discretion in finding [Appellant] guilty of
          the crimes charged.

     [2.]   Whether the trial court committed an error of law and/or
            abuse of discretion in giving a flight/consciousness of guilt
            jury instruction based upon the fact that [Appellant] had
            removed a GPS ankle monitor and had failed to appear at
            a court proceeding.

Appellant’s Brief at unnumbered page 4 (unnecessary capitalization and trial

court answers omitted).

     We consider Appellant’s sufficiency claim mindful of the following.

     The standard we apply in reviewing the sufficiency of the
     evidence is whether 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. 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


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      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 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 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.

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa.

Super. 2008)).

      At the time that Appellant committed the present crimes, burglary was

defined as follows: “A person is guilty of burglary if he enters a building or

occupied structure, or separately secured or occupied portion thereof, with

intent to commit a crime therein, unless the premises are at the time open

to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S.

§ 3502(a) (superceded).

            A conspiracy conviction requires proof of (1) an intent to
      commit or aid in an unlawful act, (2) an agreement with a co-
      conspirator and (3) an overt act in furtherance of the conspiracy.
      Because it is difficult to prove an explicit or formal agreement to
      commit an unlawful act, such an act may be proved inferentially
      by circumstantial evidence, i.e., the relations, conduct or
      circumstances of the parties or overt acts on the part of the co-
      conspirators.

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (quoting

Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)).



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The offense underlying the conspiracy was robbery, “which requires proof, in

relevant part, that in the course of committing a theft, the defendant

threatened another with or intentionally put another in fear of immediate

serious bodily injury.”   Commonwealth v. Tejada, __ A.3d __, 2015 WL

62931, *3 n.4 (Pa. Super. filed January 6, 2015) (citing 18 Pa.C.S.

§ 3701(a)(1)(ii)).

      Appellant argues that “[t]he jury’s verdict in finding … [Appellant] not

guilty of robbery, terroristic threats and the firearms charge simple [sic]

demonstrate[s] that the evidence was insufficient as a matter of law to find

… Appellant guilty of burglary and conspiracy.” Appellant’s Brief at

unnumbered page 7 (unnecessary capitalization omitted). Appellant fails to

cite any legal authority in support of this claim, and we conclude that it is

without merit. “Consistency in criminal verdicts is not necessary, and logical

inconsistencies will not serve as grounds for reversal. Inconsistent verdicts

are proper so long as the evidence is sufficient to support the convictions the

jury has returned.” Commonwealth v. Maute, 485 A.2d 1138, 1145 (Pa.

Super. 1984) (citation omitted).

      The relevant testimony presented at trial is as follows.     Wroblewski

testified that on March 25, 2011, in the course of driving around and trying

to figure out plans for the night, “KG” told Wroblewski and some others

about “this guy that had some money and some drugs and stuff in his

house.”    N.T., 1/22/2014, at 49-51.        They talked about the “whole



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situation,” meaning the man with the money and pills, and Robert Johnson

a/k/a “J” made some phone calls looking for someone with a gun. Id. at 47,

51-52. After driving to various locations and retrieving a trash bag and a

crowbar, the group continued to drive around until J could locate someone

with a gun.    Id. at 52-53.      After J located someone, they went to a

Starbucks parking lot in Doylestown, where J got out of the van to meet

Appellant.   Id. at 53.   Subsequently, they followed Appellant back to his

house. Id. at 54. When they arrived, Appellant got out of his car, got a gun

from the trunk of his car, and put it in his waistband. Id. at 56-57. They

proceeded to an upstairs bedroom in Appellant’s house, where they

discussed “how it was going to go down” and grabbed stuff they needed,

such as masks.    Id. at 57-59.    Appellant had changed into dark clothing.

Id. at 59.    Then, Appellant, Schussler, J, KG, and Wroblewski left for

Horsham. Id. at 59-60.

     Wroblewski further testified that once in Horsham, they parked down

the street from Hopper’s home.        Id. at 60-61.   Wroblewski, KG, and

Appellant got out of the van and walked up to Hopper’s home. Id. KG got

into the house through a window, then opened the back door to let Appellant

and Wroblewski inside the house. Id. at 62. Wroblewski waited by the back

door for lookout, and KG and Appellant went upstairs.       Id.   Wroblewski

heard two gunshots. Id. at 62-63.




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      Schussler testified that after being turned away from a pub on the

night in question, he and some others eventually met Appellant in front of a

Starbucks in Doylestown. N.T., 1/23/2014, at 4-7. Then, Appellant got into

Schussler’s van, and they went to Hatboro. Id. at 7. When they arrived,

Appellant, KG, who had a crowbar, and Wroblewski got out of the vehicle,

while Schussler and J remained in the vehicle. Id. at 7-8.

      Schussler testified that after the men exited the vehicle, Schussler and

J drove around the block, went to Wawa, and then parked at the end of the

street. Id. at 8. While sitting in the vehicle, Schussler heard two or three

loud bangs that sounded like gunshots. Id. After about 15 or 20 minutes,

Wroblewski came out with a safe along with Appellant. Id. They left and

went to Warminster, to Appellant’s house.    Id. at 8-9. Schussler testified

that, at his house, he saw Appellant with a semi-automatic type gun. Id. at

10.

      Hopper testified that on the night of March 25, 2011, his girlfriend

went out while he stayed home and watched TV. N.T., 1/22/2014, at 32-33.

He had gone to bed sometime after midnight and was startled awake by two

fully masked intruders, one armed with a crowbar and one armed with a

semi-automatic gun. Id. at 33-35. The masked intruders started yelling at

Hopper, demanding money and a safe. Id. at 35. Hopper was in fear for his

life and a struggle ensued, where Hopper was beaten about the head and

body. Id. at 36-37. During the course of that struggle, two gunshots were



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discharged into the ceiling by one of the masked men. Id. at 36. Hopper

testified that the assailants took a safe with them. Id. at 38, 45.

      This   evidence,   viewed    in    the   light   most   favorable   to   the

Commonwealth, establishes that Appellant participated in the planning of the

invasion of Hopper’s home for money and drugs. Appellant supplied the gun

and the masks and had dressed in dark clothing in preparation for the home

invasion. Appellant then surreptitiously entered the house and participated

in the attack of Hopper while demanding money and a safe. Based on the

foregoing, it is clear that the Commonwealth proved the necessary elements

of the crimes that Appellant challenges on appeal.

      Appellant also argues that the verdicts were against the weight of the

evidence. Our standard of review is well-settled:

      The weight given to trial evidence is a choice for the factfinder. If
      the factfinder returns a guilty verdict, and if a criminal defendant
      then files a motion for a new trial on the basis that the verdict
      was against the weight of the evidence, a trial court is not to
      grant relief unless the verdict is so contrary to the evidence as to
      shock one’s sense of justice.

      When a trial court denies a weight-of-the-evidence motion, and
      when an appellant then appeals that ruling to this Court, our
      review is limited. It is important to understand we do not reach
      the underlying question of whether the verdict was, in fact,
      against the weight of the evidence. We do not decide how we
      would have ruled on the motion and then simply replace our own
      judgment for that of the trial court. Instead, this Court
      determines whether the trial court abused its discretion in
      reaching whatever decision it made on the motion, whether or
      not that decision is the one we might have made in the first
      instance.




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      Moreover, when evaluating a trial court’s ruling, we keep in mind
      that an abuse of discretion is not merely an error in judgment.
      Rather, it involves bias, partiality, prejudice, ill-will, manifest
      unreasonableness or a misapplication of the law. By contrast, a
      proper exercise of discretion conforms to the law and is based on
      the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (quoting

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).

      Appellant essentially argues that his convictions were based solely on

the testimony of his co-conspirators, which the jury clearly did not believe as

evidenced by his acquittals on other charges.          Appellant also notes that

there was no DNA evidence or other credible corroborating evidence

establishing his guilt, particularly in light of those acquittals.

      Appellant’s contention consists of nothing more than a variation of his

unavailing   sufficiency   argument     and   a   challenge    to    the   credibility

determinations made by the jury. 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.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa.

Super. 2003).1 In concluding that the weight of the evidence supported the

jury’s verdict, the trial court explained that Appellant attempted to attack

1
  In this regard, we disagree with Appellant’s contention that, as evidenced
by the acquittals, the jury clearly disbelieved the co-conspirators’ testimony.
See Commonwealth v. Maxwell, 421 A.2d 699, 702 (Pa. Super. 1980)
(“The fact that the verdicts may be interpreted to reflect the jury’s disbelief
of, or doubt about, some of the victim’s testimony concerning [one] incident
does not mean that the jury could not believe the victim’s testimony
concerning [another] incident. The jury was not required to find all of her
testimony either worthy or unworthy of disbelief; it was entitled to believe
all, part, or none of the testimony.”).


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the credibility of the co-conspirators at trial, but that “the evidence that the

jury believed and to which both [Wroblewski] and [Schussler] were

consistent on was that Appellant was involved in the planning and

commission of the home invasion. Defense counsel’s attempts at attacking

their credibility did not sway the jury.” Trial Court Opinion, 6/16/2014, at 9.

We discern no abuse of discretion in the trial court’s determination and,

thus, Appellant is not entitled to relief on his weight-of-the-evidence claim.

      Finally, relying upon Commonwealth v. Babbs, 499 A.2d 1111 (Pa.

Super. 1985), Appellant argues that it was improper for the trial court to

give a flight/consciousness of guilt instruction on the basis that Appellant

failed to appear for trial.   Appellant contends that the stipulated evidence

regarding his failure to appear did not show that he was attempting to avoid

prosecution or hide from law enforcement.

      We review jury instructions with deference to the trial court and may

reverse the lower court only where it abused its discretion or committed an

error of law. Commonwealth v. Hornberger, 74 A.3d 279, 282 (Pa.

Super. 2013).

      [W]hen reviewing jury instructions for error, the charge must be
      read as a whole to determine whether it was fair or prejudicial.
      The trial court has broad discretion in phrasing its instructions,
      and may choose its own wording so long as the law is clearly,
      adequately, and accurately presented to the jury for its
      consideration.


Id. at 283 (quoting Commonwealth v. Sepulveda, 55 A.3d 1108, 1141

(Pa. 2012)).


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     In Babbs, a panel of this Court observed:

     The rule of law in this Commonwealth is that “[w]hen a person
     commits a crime, knows that he is wanted therefor, and flees or
     conceals himself, such conduct is evidence of consciousness of
     guilt, and may form the basis in connection with other proof
     from which guilt may be inferred.” This rule has not heretofore
     been expanded to permit an inference of guilt merely because a
     defendant has failed to appear for trial. A failure to appear on
     the day set for trial does not have the same connotation as pre-
     arrest flight or concealment and cannot be said to point
     unerringly to consciousness of guilt.

Babbs, 499 A.2d at 1113 (citations omitted) (quoting Commonwealth v.

Coyle, 203 A.2d 782, 789 (1964)). Applying this rule to the facts before it,

the Babbs Court held that the defendant’s absence did not suggest guilt:

     In the instant case, appellant did not flee or conceal his
     whereabouts either prior to or at any time after arrest. After
     appellant had appeared on several occasions, he failed to appear
     on a continued trial date. He did not flee or conceal himself,
     however, and was found shortly thereafter at his known
     residence. He said that he had failed to appear on the continued
     trial date because of a dispute with his attorney. We perceive in
     these circumstances no basis for drawing an inference that
     appellant’s failure to appear on the continued trial date was
     attributable to a consciousness of guilt.

                                    ***

     … There was not a necessary connection between a mere post-
     arrest failure to appear for trial and consciousness of guilt. This
     is particularly true where, as here, the failure to appear was not
     accompanied by flight and the defendant did not move from or
     leave his known, permanent place of residence. Therefore, we
     will reverse and remand for a new trial free from the unavoidable
     prejudice caused by the irrelevant evidence that appellant had
     on an earlier occasion failed to appear for trial.

Babbs, 499 A.2d at 1114.




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     Nevertheless, this Court has observed that a trial court could properly

instruct a jury on consciousness of guilt under circumstances wherein a

defendant’s failure to appear is accompanied by evidence of flight or

concealment. For example, in Commonwealth v. Carter, 597 A.2d 1156

(Pa. Super. 1991), this Court distinguished Babbs, explaining that in

Carter,

     [t]he Commonwealth’s evidence was not limited merely to
     appellant’s failure to appear when the case was called for trial.
     Rather, the Commonwealth’s evidence was that appellant had
     failed to appear for a scheduled trial date on July 5, 1978, that a
     bench warrant had been issued for his arrest, and that he had
     not been apprehended until July 20, 1979. On that date,
     moreover, appellant attempted to avoid apprehension by giving
     police a false name. This evidence was sufficient to permit an
     inference that appellant had fled, and/or concealed his
     whereabouts to avoid prosecution. On this basis, the trial court
     could properly instruct the jury that an adverse inference could
     be drawn. See and compare: Commonwealth v. Knox, 290
     Pa.Super. 104, 108 n. 3, 434 A.2d 151, 153 n. 3 (1981)
     (evidence of defendant’s failure to appear for trial and eventual
     apprehension four months later properly received to establish
     consciousness of guilt); Commonwealth v. Smith, 250
     Pa.Super. 460, 467-468, 378 A.2d 1239, 1243 (1977)
     (defendant’s flight from jurisdiction after posting bond was
     properly received as evidence of consciousness of guilt);
     Commonwealth v. Myers, 131 Pa.Super. 258, 264-265, 200 A.
     143, 146 (1938) (evidence of defendant’s failure to appear for
     trial, issuance of bench warrant for his arrest, efforts of police to
     locate him and his apprehension approximately six months later
     was properly received as evidence of consciousness of guilt;
     “flight” includes not only leaving the jurisdiction, but also any
     concealment to avoid arrest or prosecution).

Carter, 597 A.2d at 1160-61.

     Here, we discern no error or abuse of discretion in the trial court’s

decision to instruct the jury on flight/consciousness of guilt. The evidence


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relevant to this issue was read to the jury in the form of the following

stipulation:

            On October 18, 2012, the defendant, Teron Utsey, was on
      bail for the current charges. A condition of bail was that he
      remain under house arrest. An individual under house arrest
      must wear a GPS monitoring device.

            In March of 2013 it was determined that the GPS ankle
      bracelet had been removed from the defendant’s ankle. In
      September 2013 the defendant was apprehended in New York.

N.T., 1/23/2014, at 41.

      The      court’s   instruction   to   the   jury   as   it     pertained   to

flight/consciousness of guilt was as follows:

             You heard evidence by way of the stipulation that the
      defendant fled to avoid prosecution of this case. Generally
      speaking, when a crime has been committed and a person is
      charged with that offense, and flees the jurisdiction, such flight
      is a circumstance tending to prove that the person is conscious
      of guilt.     Such flight or concealment does not show
      consciousness of guilt in every case. A person may flee for some
      other motive, and may do so even though innocent.

              Whether the evidence of flight or concealment in this case
      should be looked at as tending to prove guilt depends upon the
      facts and circumstances of this case, and especially upon the
      motives that may have prompted the flight or concealment. You
      may not find a defendant guilty solely on the basis of evidence of
      flight.

N.T., 1/23/2014, at 58.

      The above stipulation established that Appellant was aware of the

charges against him and was restricted to house arrest while awaiting trial.

Moreover,      the   stipulation   demonstrated   that   Appellant    subsequently

removed his GPS monitoring device and was apprehended outside of the


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jurisdiction several months later. Based on the evidence of record, the trial

court properly charged the jury on flight/consciousness of guilt.

       Because none of Appellant’s issues warrants relief, we affirm his

judgment of sentence.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2015




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