J-A22001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MUHAMMAD MUHFOOTH,

                             Appellant                No. 2207 EDA 2017


          Appeal from the Judgment of Sentence Entered May 8, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004337-2015


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 13, 2018

        Appellant, Muhammad Muhfooth, appeals from the judgment of

sentence of 4-8 years’ incarceration, and a consecutive term of 3 years’

probation, imposed following his conviction for robbery and firearm offenses.

Appellant challenges the weight and sufficiency of the evidence supporting his

conviction. After careful review, we affirm.

        The trial court summarized the facts adduced at trial as follows:

           On March 13, 2015, [Appellant], armed with a gun, robbed …
        Tommy Le by forcing Le into Le’s car and ordering him to turn
        over his ATM card and drive to a nearby ATM so [Appellant] could
        withdraw money from the account. [Appellant] forced [Le] to
        drive [him] back to his house and threatened to hurt [Le] if he
        told anyone about the incident.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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         [Le] testified that he lived on … Saybrook Avenue in Southwest
     Philadelphia in March of 2015. He had lived there for fifteen (15)
     years and [Appellant] had been living across the street for about
     five (5) months prior to the robbery. [Le] would see [Appellant],
     who he knew as ‘Snoop,’ from time to time on the block[.] On
     March 13, 2015, ‘Snoop’ forced [Le] to get into the driver’s seat
     of [Le]’s car. [Appellant] then entered the back seat and told [Le]
     that he would hurt him if he didn’t listen. [Appellant] forced [Le]
     to drive him to a corner store two blocks away and told him: “I’m
     not letting you out of the car until you give me money” and “[y]ou
     are not leaving until I get some kind of money.” [Le] didn’t have
     any money but had a MasterCard that he had borrowed from a
     friend,1 which he handed over to [Appellant]. When they pulled up
     to the corner store, [Appellant] rolled down his window and
     passed the card to a male who was standing outside of the store.
     This male went into the store and returned with about $135.00 in
     cash, which he handed over to [Appellant], who had remained in
     the backseat of [Le]’s car.
        1 The friend in question is a 50[-]year-old friend of [Le]’s,
        named Sura Klam, who was afflicted with cancer and had
        trouble getting around. [Le] had Klam’s Social Security
        debit card and personal identification number (PIN) because
        he helps to take care of Klam and uses it to get Klam
        groceries[.] The card was returned to Klam after the
        incident[.] Klam had accompanied [Le] to the police station
        and Southwest Detectives on March 14, 2015[,] but did not
        give any statements.

        [Le] testified that [Appellant] then ordered [Le] to drive him
     home. When they were parked outside [of Appellant]’s house,
     [Appellant] told [Le,] “you better not snitch and I’m going to get
     you if you do” and [Le] saw a black and silver object in
     [Appellant]’s pants that he believed to be a gun[.] [Appellant]
     told [Le] that he knew where [he] lived and also threatened to
     shoot up [Le]’s house. After [Appellant] exited [the] car, Le drove
     to a Cambodian Temple to return his friend’s MasterCard and tell
     him what happened.

        The next day, [Le] went to a police station in South Philadelphia
     to report the incident[.] [Le] did not go to the police station a
     block from his house for fear that [Appellant] would see him going
     to the police. For the same reason, [Le] did not call the police to
     come to his house. In his statement to Officer Hasan, [Le]
     described [the robber] as “30, black male, ‘Snoop,’ possible

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     address, 2212 South 66th Street, with approximate height, weight
     as 6’1”, 250 pounds, beard, multiple tattoos on face, dark hoodie,
     gray vest.” The same day he gave a statement to Officer Hasan,
     [Le] also went to Southwest Detectives. In his statement to
     Southwest Detectives, [Le] stated that he saw [Appellant]’s “big,
     black handgun” but it remained in [Appellant]’s pants at the
     beginning of their interaction[.] When shown an array of photos
     at Southwest Detectives, [Le] identified [Appellant] as the male
     who robbed him.

        Philadelphia Police Officer Khalil Nock of the 12th Police District
     testified that he transported [Le] from the 17th District to
     Southwest Detectives on March 14, 2015. Officer Nock testified
     that he knew that [Le] was talking about [Appellant] from the
     description [he] gave of him on their ride over to Southwest
     Detectives. Officer Nock knew this because he walked a foot beat
     in the area where [Le] and [Appellant] lived and had seen
     [Appellant] previously. Officer Nock gave this information to
     Detective Daniel Blount, who had been assigned to this case.

        [Le] identified [Appellant] in the photo array as the male who
     robbed him the night before. After [Le]’s identification, Detective
     … Blount prepared a search warrant for [Appellant]’s house at
     2212 South 66th Street.

        Det. Blount testified that he was present when the search
     warrant was executed on the property at 2212 South 66th Street
     on March 15, 2015, less than twelve hours after [Le] identified
     [Appellant]. [Appellant], arrested during the search, was present
     with other members of his family. Recovered during the search
     were a blue zip-up cotton sweat jacket, which [Le] had described
     [Appellant] as wearing at the time of the incident, and a letter
     addressed to [Appellant] at 2212 South 66th Street, confirming
     his address.

        The Commonwealth and defense counsel stipulated to the fact
     that [Appellant] had a prior conviction for an enumerated offense
     for more than sixty (60) days prior to this offense, which rendered
     him ineligible to possess a firearm under § 6105 of the Uniform
     Firearms Act. Lastly, they stipulated to the fact that [Appellant]
     did not have a valid and lawfully issued license to carry in
     Pennsylvania, nor did he have a valid sportsman’s permit.

Trial Court Opinion (TCO), 10/16/17, at 2-5 (citations omitted).



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      Following a non-jury trial held on February 1, 2017, the trial court

convicted Appellant of Robbery, 18 Pa.C.S. § 3701(a)(1); possession of a

firearm prohibited, 18 Pa.C.S. § 6105; carrying a firearm without a license,

18 Pa.C.S. § 6106; carrying a firearm in public, 18 Pa.C.S. § 6108; possession

of an instrument of crime (PIC), 18 Pa.C.S. § 907; and false imprisonment,

18 Pa.C.S. § 2903. On May 8, 2017, the court sentenced Appellant to 4-8

years’ incarceration for robbery, and to a consecutive term of 3 years’

probation for possession of a firearm prohibited. On May 18, 2017, Appellant

filed a timely post-sentence motion challenging the weight and sufficiency of

the evidence supporting his conviction. The trial court denied Appellant’s post-

sentence motion on June 14, 2017.

      Appellant filed a timely notice of appeal on July 6, 2017.     He filed a

timely, court-ordered Pa.R.A.P. 1925(b) statement on September 4, 2017.

The trial court issued its Rule 1925(a) opinion on October 16, 2017. Appellant

now presents the following questions for our review:
      A. Did the [trial] court improperly convict Appellant … where there
      was insufficient evidence of: (1) his intent to take movable
      property by threat of force in support of the robbery conviction;
      (2) his possession of an illegal firearm; and (3) his intent to
      knowingly restrain another so as to substantially interfere with
      their liberty in support of the false imprisonment conviction[?]

      B. Did the [trial] court improperly convict [A]ppellant … where the
      verdict was contrary to the weight of the evidence at trial?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      Appellant’s first claim is a three-part challenge to the sufficiency of

evidence.   Initially, we must address the Commonwealth’s assertion that


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Appellant waived his sufficiency challenge(s) by failing to articulate in his Rule

1925(b) statement which elements of which crimes he intended to challenge

on direct appeal. See Commonwealth v. Williams, 959 A.2d 1252, 1256-

58 (Pa. Super. 2008) (holding that the failure to articulate a sufficiency claim

with specificity in a Rule 1925(b) statement is grounds for waiver).

       In Appellant’s Rule 1925(b) statement, his sufficiency claim was

presented as follows:
       [T]he evidence presented by the Commonwealth was legally
       insufficient to sustain a verdict of guilty as to any of the charges.
       The testimony of the complaining witness was incredible and
       uncorroborated by any credible and/or unbiased evidence. The
       testimony of this complaining witness was biased and/or was not
       credible due to his prior convictions, pending criminal matters, and
       testimonial inconsistencies. The Commonwealth failed to present
       any physical or scientific evidence that corroborated his account
       of the incident.

Appellant’s Rule 1925(b) Statement, 9/4/17, at 2 ¶ 6 (unnumbered pages).

       Thus, Appellant’s Rule 1925(b) statement indicated that the nature of

his challenge to the sufficiency of the evidence concerned the credibility of the

victim.1 In his brief, however, Appellant argues that the Commonwealth failed

to prove specific elements of the crimes at issue. See Appellant’s Brief at 8-

10 (challenging the sufficiency of the evidence presented to demonstrate the

victim’s fear of immediate serious bodily injury pursuant to Section
____________________________________________


1Such a claim is, in any event, a challenge to the weight, not the sufficiency,
of the evidence. “A sufficiency of the evidence review … does not include an
assessment of the credibility of the testimony offered by the Commonwealth.
Such a claim is more properly characterized as a weight of the evidence
challenge.” Commonwealth v. Wilson, 825 A.2d 710, 713–14 (Pa. Super.
2003) (citation omitted).

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3701(a)(1)(ii)); id. at 10-12 (arguing a lack of sufficient evidence to

demonstrate Appellant’s possession of a firearm for purposes of his multiple

firearm violations and PIC); id. at 12-13 (claiming insufficient evidence that

Appellant interfered with the victim’s liberty pursuant to Section 2903(a)).

Moreover, in his post-sentence motion, Appellant raised the sufficiency of the

evidence in an even more generic fashion.        See Appellant’s Post-Sentence

Motion, 5/18/17, at 2 ¶ 4 (“[T]he evidence presented by the Commonwealth

was legally insufficient to sustain a verdict of guilty as to any of the charges.”)

(unnumbered pages). Thus, Appellant’s post-sentence motion could not have

aided the trial court in determining the specific sufficiency claims Appellant

intended to raise on appeal.

      Accordingly, we agree with the Commonwealth that Appellant failed to

raise his sufficiency claim(s) in his Rule 1925(b) statement with adequate

specificity. Indeed, Appellant failed to raise any sufficiency claim at all in his

Rule 1925(b) statement. See n.1, supra. Accordingly, we are compelled to

deem Appellant’s sufficiency claims waived.        “Any issues not raised in a

1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998).

      Thus, we now turn to address Appellant’s weight-of-the-evidence claim.

“When reviewing a challenge to the weight of the evidence, the verdict may

be reversed [by the trial court] only if it is so contrary to the evidence as to

shock one's sense of justice.” Commonwealth v. Davidson, 860 A.2d 575,

582 (Pa. Super. 2004). This Court applies the following standard of review to

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a claim that the trial court erred in finding that a verdict was or was not against

the weight of the evidence:

        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. 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.

         This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.         In
      describing the limits of a trial court’s discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for the
         purpose of giving effect to the will of the judge. Discretion
         must be exercised on the foundation of reason, as opposed
         to prejudice, personal motivations, caprice or arbitrary
         actions. Discretion is abused 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).




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      Appellant’s argument in support of his weight-of-the-evidence claim, in

its entirety, is as follows:

            The complainant[, Le,] told the trial court on several
      occasions that he exaggerated his allegations. He stated on
      several occasions during trial that he only “assumed” Appellant
      had a gun. Upon repeated questioning, he stated that he neither
      saw a gun nor was a gun or any other weapon displayed to him[.]
      He admitted that he lied to detectives about how the incident
      began. Further, the complainant admitted to having a faulty
      memory due to anxiety and the medication he takes as a result of
      his condition.

            Additionally, there was no evidence offered to corroborate
      the complainant’s inconsistent statements. Law enforcement did
      not recover a gun, a bank card, any bank records, or any other
      evidence that one would expect to recover had the complainant’s
      story been true. What was supported by competent, credible
      evidence was that the complainant had multiple and recent
      convictions for crimen falsi offenses. As a result, the trial court
      improperly rejected Appellant[’s] weight of the evidence claim.

Appellant’s Brief at 14-15.

        At the outset, we acknowledge that the victim in this case was less

than ideal as a witness for the Commonwealth. His testimony was inconsistent

at times. However, while Appellant attributes these deficiencies exclusively

to fabrication, they may also simply reflect the victim’s nervousness and fear,

both at the time of the alleged robbery and during his in-court testimony.

      Moreover, we find that Appellant himself exaggerates the record in this

case in making his weight-of-the-evidence claim. Appellant asserts that the

victim “neither saw a gun nor was a gun or any other weapon displayed to

him.” Id. at 14. Appellant does not cite to where in the record the victim

made such a statement. Our review of the record indicates that the victim did


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state that he did not see a gun when the robbery began; at that time, he had

only “assumed” that Appellant was armed. See N.T., 2/1/17, at 23. However,

the victim also testified that he saw what he believed to be a gun tucked in

Appellant’s pants later on, when the victim was returning Appellant to his

house. Id. at 22-23. At that time, he saw the color of the gun, “and the

trigger[.]”   Id. at 22.    Accordingly, we reject Appellant’s misleading

characterization of the record, as the victim did, in fact, testify that he

observed a gun in Appellant’s possession.

      Appellant also claims that the victim admitted to lying when he initially

contacted police about the incident. Appellant’s Brief at 14. Again, Appellant

provided no citation to the record where this supposed admission occurred.

At worst, the victim admitted on several occasions during cross-examination

there were some inconsistencies between his initial statements to police and

his trial testimony.   The existence of inconsistencies in a complainant’s

testimony rarely will shock the conscience, because some degree of

inconsistency is ubiquitous in trial testimony. Here, we are not confronted

with completely incompatible accounts from the Commonwealth’s sole

witness, such as would be the case if the victim had reported the presence of

a gun, and then refuted that claim entirely during his testimony. Instead, the

inconsistency here involves when the victim first observed the gun during the

traumatic experience of a robbery. Any number of reasons could account for

this inconsistency beyond fabrication, many of which are completely

compatible with the witness’s credibility.       A verdict based on these

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inconsistencies, on their face, does not shock the conscience and, therefore,

we ascertain no abuse of discretion in the trial court’s determination that the

victim’s testimony was credible and supported the verdict.

      Appellant also complains that there was no corroborating evidence to

support the verdict. He aruges that “[l]aw enforcement did not recover a gun,

a bank card, any bank records, or any other evidence that one would expect

to recover had the complainant’s story been true.” Appellant’s Brief at 15.

Appellant’s expectations are greater than our own. While such evidence would

have been helpful to the Commonwealth, it was not necessary and, at the

same time, there was no evidence tending to contradict the victim’s account.

Thus, this case turned, exclusively, on the credibility of the victim. Mandating

to the trial court a decision that testimony is never credible in the absence of

corroborating evidence has no basis in existing law.

      Moreover, as this Court has stated previously, 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.”

Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017)

(citation omitted). It is certainly possible that a different judge, given the

same facts, would have found the credibility of the victim’s testimony wanting.

However, recognition of that possibility is not grounds for a new trial. See id.

Instead, under our standard of review, we must evaluate whether no

reasonable judge could have deemed the witness credible based on the facts

of this case, which is a prohibitively high standard. We cannot reach such a

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conclusion under the facts of this case and, therefore, we must conclude that

the trial court did not abuse its discretion in denying Appellant’s post-sentence

motion challenging the weight of the evidence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/18




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