J.   S29044/19

NON-PRECEDENTIAL DECISION                - SEE SUPERIOR COURT I.O.P.        65.37
COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                    v.

RANDY K. FOXWELL,                                       No. 2243 EDA 2018

                         Appellant


       Appeal from the Judgment of Sentence Entered February 16, 2018,
              in the Court of Common Pleas of Montgomery County
                 Criminal Division at No. CP-46-CR-0007851-2016


BEFORE:     BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED AUGUST 12, 2019

        Randy K. Foxwell appeals from the February 16, 2018 judgment of

sentence entered in the Court of Common Pleas of Montgomery County

following his conviction in   a   jury trial of two counts of robbery and one count
each of criminal conspiracy to commit robbery and simple assault.' Appellant

received an aggregate sentence of 10 to 20 years' imprisonment.2 We affirm.


' 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 903, and 2701(a)(1), respectively.
We note that the trial court found appellant guilty of driving under the
influence ("DUI") pursuant to 75 Pa.C.S.A. § 3802(a)(1) and sentenced
appellant to 6 months' probation and ordered him to pay a $300 fine. (Notes
of testimony, 8/4/17 at 66; see also sentencing order, 2/16/18.)

2 The record reveals that the trial court sentenced appellant for his conviction
of robbery - Section 3701(a)(1)(ii) - felony of the first degree, but did not
impose a sentence for his conviction of robbery - Section 3701(a)(1)(iv) -
felony of the second degree.         (Sentencing order, 2/16/18; see also
sentencing hearing transcript, 2/16/18 at 11.) Pursuant to 42 Pa.C.S.A.
§ 9714(a)(1),   appellant was sentenced to a minimum of 10 years'
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       The trial court set forth the following factual and procedural history:

             The offenses for which [appellant] was convicted took
             place on August 10, 2016, on Interstate 76,
             Montgomery County, Pennsylvania.

             On    that date,van being operated by [appellant] hit
                                a
             another vehicle while merging onto Interstate 76 from
             Route 202. [Appellant's] vehicle struck a commercial
             crane truck, driven by Brian Bileyu.       Mr. Bileyu
             testified at trial that the van being driven by
             [appellant] veered into the passenger side of his crane
             truck, leaving a small scuff mark on the crane and a
             broken mirror and paint scratches on the driver side
             of the van.

             Mr.  Bileyu further testified that initially after the
             accident he pulled off onto the side of the road.
             [Appellant] did not immediately do so, rather he
             steered the van next to the crane truck, and yelled at
             the driver through his open window. [Appellant] then
             pulled the van onto the side of the road, and he and
             the front seat passenger in the van, Jeffrey Jones, Jr.,
             got out, walked over to the driver['] side window of
             the crane truck, and tried to open the door.

             It  was the testimony of Mr. Bileyu, that upon coming
             over to the driver's side window of the crane truck,
             [appellant] and Mr. Jones attempted to open the door
             to the crane truck and were "demanding money
             saying we will rob you and do all of this stuff." The
             two men insisted that Mr. Bileyu give them his wallet
             and give them a check.         Once Mr. Bileyu did not
             cooperate[,] the two men began punching him in the
             face and mouth. As the men continued punching him,
             it is the testimony of Mr. Bileyu, that the passenger in
             the van, Mr. Jones[,] continued to tell Mr. Bileyu that
             he was going to pay them. Mr. Jones then informed
             Mr. Bileyu that he had a gun, which Mr. Bileyu did
             observe. Eventually, a female passenger who had

imprisonment for the conviction of his current crime of violence, in this case
robbery, because in 1992 appellant was convicted of a previous crime of
violence, also robbery. (Sentencing hearing transcript, 2/16/18 at 10.)

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            been waiting in the van approached [appellant] and
            Mr. Jones and spoke to the men, which ultimately
            resulted in [appellant] and Mr. Jones leaving
            Mr. Bileyu alone in the crane truck. [Appellant] and
            Mr. Jones got into their van and drove away.

            Sergeant William Charles Slaton, of the State Police,
            also testified at trial.    It was the testimony of
            Sergeant Slaton that he arrived on the scene as
            [appellant] was being handcuffed. Sergeant Slaton
            observed that [appellant] appeared disheveled, was
            very irate, and he smelled strongly of alcohol. In
            addition, Sergeant Slaton observed [appellant]
            urinate on himself while in the back of a police car on
            the scene.

            Upon conclusion of the two-day Jury trial, [appellant]
            was found guilty as to all counts. [Appellant] was
            sentenced on February 16, 2018. [Appellant] then
            filed a pro se post -sentence motion on February 26,
            2018. Subsequent to the pro se filing, by order dated
            March 6, 2018, this Court appointed new counsel,
            Attorney Henry Hilles, III[,] to review the
            post -sentence motion and either amend it or seek
            additional time for the motion to be ruled
            upon.[Footnote 6]      Mr. Hilles opted to amend
            [appellant's] pro se motion, and on May 1, 2018, filed
            an Amended Post -sentence Motion on behalf of
            [appellant].     This Court denied         [appellant's]
            Post -sentence Motion by order dated June 25, 2018.
            On July 24, 2018, [appellant] filed a timely notice of
            direct appeal to the Superior Court of Pennsylvania.
            By order dated July 26, 2018, the [trial court] directed
            [appellant] to file a [concise] statement of errors
            complained of on appeal, pursuant to Pennsylvania
            Rule of Appellate Procedure 1925(b).         This Court
            received [appellant's Rule] 1925(b) statement on
            August 16, 2018.

                  [Footnote 6] On March 9, 2018, while
                  unaware of Mr. Hilles' representation,
                  [appellant] filed a pro se notice of direct
                  appeal. Mr. Hilles petitioned the Superior
                  Court to have that appeal withdrawn,


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                         which was granted by order dated June 4,
                         2018.

Trial court opinion, 9/18/18 at 1-4 (citations to notes of testimony and

footnote   5   omitted).       The trial court subsequently filed its Rule 1925(a)

opinion.

       Appellant raises the following issues for our review:

               1.        Was the evidence at trial sufficient for the jury
                         to find [a]ppellant guilty of the crime of robbery
                         (and by extension criminal conspiracy to commit
                         robbery)?

               2.        Was the finding of guilt for the crimes of robbery
                         (and by extension criminal conspiracy to commit
                         robbery) against the weight of the evidence?

Appellant's brief at 2.3

       Appellant first claims the evidence was insufficient to support his

robbery conviction. Our standard and scope of review for           a   sufficiency of the

evidence claim      is   well settled.

               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

3Appellant's Rule 1925(b) statement reveals that he failed to raise sufficiency
and weight claims challenging the conviction for criminal conspiracy to commit
robbery.       Therefore,    those   claims    are     waived    pursuant    to
Pa.R.A.P. 1925(b)(4)(vii). See Commonwealth v. Castillo, 888 A.2d 775,
780 (Pa. 2005) (stating, "Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived."), re -affirming, Commonwealth v.
Lord, 719 A.2d 306 (Pa. 1998).

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              that the facts and circumstances established by the
              Commonwealth need not preclude every 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 proof or 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).

        Robbery is defined, in pertinent part, as follows:

              §   3701. Robbery

              (a)    Offense defined. --

                     (1)   A person isguilty 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;  .   .   .




                           (iv)   inflicts  bodily injury
                                  upon       another     or
                                  threatens another with
                                  or intentionally puts
                                  him     in     fear     of
                                  immediate           bodily
                                  injury;


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18 Pa.C.S.A. §   3701(a)(1)(ii) and (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."              See id. at    §   3701(a)(2); see also

Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.Super. 2007) (citation
omitted) (holding that, "any overt attempt to commit theft will constitute

robbery if the requisite force     is   employed" and the jury    is   "free to convict on

robbery even when it finds no theft was completed."). "A person                is   guilty of

theft if he unlawfully takes, or exercises unlawful control over, movable

property of another with intent to deprive him thereof."                    18 Pa.C.S.A.

§    3921(a).

        Here, appellant argues that although he punched Mr. Bileyu several

times and demanded that Mr. Bileyu pay for the damage to his vehicle,

appellant was only attempting to collect restitution for the damage to his

vehicle and "ultimately drove away from the scene without taking or accepting

any money." (Appellant's brief at 13-15; see also appellant's Rule 1925(b)

statement, 8/16/18 at 1,111.) In so arguing, appellant challenges the element

of theft to support his conviction for robbery.

        In viewing all of the evidence admitted at trial in the light most favorable

to the Commonwealth, as verdict winner, we find there is sufficient evidence

to enable the jury, as fact -finder, to find that appellant attempted to unlawfully

take or exercise unlawful control over Mr. Bileyu's wallet and money with the

intent to deprive Mr. Bileyu of his movable property.


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       A review of the record reflects      that after the accident, appellant pulled

his van next to Mr. Bileyu's vehicle; and appellant and the passenger in

appellant's van started "hollering" at Mr. Bileyu, accusing Mr. Bileyu of hitting

appellant's van, and demanding that Mr. Bileyu pay appellant money. (Notes

of testimony, 8/3/18 at 28.)           Mr. Bileyu testified    that appellant and the

passenger exited the van and came to the window of Mr. Bileyu's vehicle

"demanding money saying we            will rob you   and will do all this     stuff." (Id. at

29 (emphasis added).) When asked what kind of things appellant was saying

to him, Mr. Bileyu stated, "Give us your wallet.          We want    a    check. You will

write us   a   check. Give us your check."      (Id. at 29-30.)   Mr. Bileyu also stated

that after appellant opened Mr. Bileyu's door, appellant "was trying to reach

for my wallet in my pocket." (Id. at 32.)

       The record clearly demonstrates that appellant attempted to unlawfully

take or exercise control over Mr. Bileyu's wallet and money when appellant,

after demanding money from Mr. Bileyu, attempted to reach into Mr. Bileyu's

truck for his wallet. Therefore, appellant's sufficiency claim           is   without merit.

       Appellant next raises      a   weight of the evidence claim challenging the

conviction of robbery. (Appellant's brief at 2, 16-18.) Appellant contends the

jury's conclusion that    a   theft or attempted theft occurred "defies credulity."

(Id. at 18.) This court's standard of review when presented with                    a   weight

claim is distinct from that applied by the trial court in reviewing the claim in             a


post -sentence motion.



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             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.     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.
             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.

Commonwealth v. Home, 89 A.3d 277, 285 (Pa.Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745                  (Pa. 2000).     The trial court

abuses its discretion "where the course pursued represents not merely an

error of judgment, but where the judgment        is    manifestly unreasonable or

where the law is not applied or where the record shows that the action is          a


result of partiality, prejudice, bias or ill -will." Home, 89 A.3d at 285-286

(citation omitted).

        Here, appellant contends that Mr. Bileyu's testimony establishes,

inter alia, that appellant   and Mr. Bileyu were involved in     a   relatively minor

car accident; appellant requested compensation from Mr. Bileyu for damage

to appellant's vehicle; and appellant left the scene of the accident without any

compensation from Mr. Bileyu.       (Appellant's brief at 17.)       Appellant boldly

asserts that Mr. Bileyu's testimony "confirmed that no theft or attempted theft

occurred at the scene of the accident." (Id. at 18.)




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        A review of appellant's brief demonstrates         that appellant invites us to

do nothing more than         reassess Mr. Bileyu's credibility and reweigh the

evidence in an attempt to convince us to reach         a   result different than the one

reached by the trial court in denying the request for         a   new trial. (See id. at

16-18.) This     is   not the role of an appellate court. See Commonwealth v.

Clay, 64 A.3d 1049, 1056 (Pa. 2013) (holding that, the role of the appellate

court when addressing        a   weight claim   is   to determine if the trial court

exceeded its limit of judicial discretion or invaded the province of the jury).

Therefore, we decline appellant's invitation to reweigh the evidence.

        After carefully reviewing the record, we discern no abuse of discretion

in   the trial court's denial of appellant's post -sentence motion as it relates to

the weight of the evidence claim.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 8/12/19




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