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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
PRESTON WAYNE WALTERS,                     :          No. 159 MDA 2015
                                           :
                           Appellant       :


          Appeal from the Judgment of Sentence, December 10, 2014,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0002967-2014


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED DECEMBER 01, 2015

        Preston Wayne Walters appeals from the judgment of sentence of

December 10, 2014, following his conviction of robbery.1 We affirm.

        The trial court provided the following relevant facts:

                    A review of the record reveals the following
              events: On May 3, 2014, Aida Algarin-Cruz was
              working as a cashier at the Sunoco station on
              Second and Maclay Streets in Harrisburg. [Bench
              Trial, Notes of Testimony, December 10, 2014,
              pp. 5-6].   Ms. Algarin-Cruz and cashier Patricia
              Buxton were working the same shift that day. [N.T.,
              12-10-14, p. 7]. Ms. Algarin-Cruz testified that she
              was stocking the milkshake machine when a
              gentleman walked into the convenience store, asked
              for a pen and paper, and went to the lottery area to
              write something down. [N.T., 12-10-14, pp. 7-8].
              The gentleman, who was identified by several

* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3701.
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          witnesses at trial as the defendant, asked
          Ms. Algarin-Cruz about phone cards and then gave
          her a handwritten note, [N.T., 12-10-14, p. 8]. The
          note directed Ms. Algarin-Cruz to open the register
          and hand over all of the money. [N.T., 12-10-14,
          p. 8-9].   Ms. Algarin-Cruz testified that she felt
          shocked, and handed the note to her co-worker,
          Patricia Buxton.      [N.T., 12-10-14, p. 9-11].
          Defendant told Ms. Algarin-Cruz that someone had
          taken his girlfriend hostage and if they didn’t hand
          over the money, he would blow their heads off [N.T.,
          12-10-14, p. 11].       Ms. Algarin-Cruz said that
          Defendant’s demeanor was “scary.”              [N.T.,
          12-10-14, p. 12]. The cashiers told Defendant that
          they would not give him any money and that,
          whatever the situation, they would call the cops.
          Defendant walked away at that point, and the
          cashiers locked the door behind him.           [N.T.,
          12-10-14, p. 17].

                 Patricia Buxton, an eight-year employee with
          Sunoco, confirmed Ms. Algarin-Cruz’s testimony.
          After Ms. Cruz gave Ms. Buxton the note from
          Defendant, Ms. Buxton punched the security button.
          She iterated that someone had his girlfriend, and he
          was looking out the window and said “they were
          going to shoot us if we didn’t give [the money] to
          him.” [N.T., 12-10-14, pp. 27-29]. Ms. Buxton
          testified that they did not give Defendant any
          money.      After Defendant left the store and the
          cashiers had locked him out, Ms. Buxton observed
          him standing near a pay phone by Maclay Street,
          and at that point memorized what he was wearing --
          a gray tee shirt, wire-rim glasses, camouflage
          shorts, and tennis shoes. [N.T., 12-10-14, pp. 30-
          32]. When the police arrived, Ms. Buxton rode with
          the officers and was able to identify Defendant on
          the street. [N.T., 12-10-14, p. 32].

                Officer Daniel Antoni of the Harrisburg City
          Police testified that when they caught up with
          Defendant and asked him what happened, he stated




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              that he had been seeing a girl named Beth,[2] that
              she was a drug user, and she owed money to
              someone. He said that a man had come to his house
              and told Defendant he would kill him if he didn’t get
              the money that Beth owed to him. Specifically, he
              said it was $300.00. The officers obtained the note
              that Defendant had written for the cashiers at
              Sunoco. [N.T., 12-10-14, p. 40]. Defendant was
              taken into custody and read his Miranda rights.

                    Testimony from Detective Jarrett Ferrari
              revealed that he re-Mirandized Defendant while he
              was in the        Criminal Investigation Division.
              Defendant agreed to talk to Detective Ferrari without
              an attorney present. [N.T., 12-10-14, p. 43]. In his
              statement, Defendant revealed the following: On
              the day in question he was woken up by Beth. When
              he opened his door for her, another person pushed
              her in and started waving a gun around, saying Beth
              owed him $300.00. Beth and the other man left and
              returned later. The man told Defendant that Beth
              had to come up with the money and put a gun to her
              head. He then put the gun near Defendant’s chest
              and they all got into the man’s car. When they got
              close to the Sunoco, the man parked the car and told
              Beth to go get the money. Beth then turned to
              Defendant and asked him to get it, at that point
              Defendant entered the store, wrote the note, and
              told the cashier that there was a man holding
              someone hostage. Defendant left the store after the
              alarm was hit, and got back into the car. The man
              told him to get out, and Defendant went back home
              and called 911. [N.T. 12-10-14, pp. 45-47].

                    Defendant took the stand and largely
              confirmed what he said in his statement to
              Detective Ferrari. Additionally, Defendant testified
              that he asked the cashier to borrow a phone to call
              the police, as there was a person outside with a gun
              who would have no problem coming into the store
              and shooting, and his phone was not working. [N.T.
              12-10-14, p. 58].

2
    Beth’s last name is not found in the record. She did not testify at trial.


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Trial court opinion, 5/28/15 at 1-4.

      Following a non-jury trial, appellant was found guilty on December 10,

2014. Immediately after the trial, the trial court sentenced appellant to 10

to 20 years’ imprisonment.      Appellant filed a post-sentence motion which

was denied on December 22, 2014. Appellant then filed a notice of appeal

on January 20, 2015. The trial court ordered appellant to produce a concise

statement of errors complained of on appeal, and appellant complied with

the trial court’s order on April 28, 2015, pursuant to Pa.R.A.P. 1925. The

trial court then filed an opinion.

      Appellant raises the following issues for our review:

            I.     Whether the Commonwealth failed to present
                   sufficient evidence to sustain Appellant’s
                   conviction where Appellant was acting under
                   duress?

            II.    Whether the trial court erred in denying
                   Appellant’s   Post-Sentence    Motion   where
                   Appellant’s conviction was against the weight
                   of the evidence so as to shock one’s sense of
                   justice where Appellant did not engage in acts
                   which constitute the offense of which he was
                   convicted?

Appellant’s brief at 5.

      The first issue for our review is whether the Commonwealth presented

sufficient evidence to counter appellant’s defense of duress.       As with all

sufficiency of the evidence claims, we are subjected to the following

standard:



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                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to the
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, the Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

                  Moreover, when applying the above test, the
            entire record must be evaluated and all evidence
            actually received must be considered. Finally, the
            finder of fact while passing upon the credibility of
            witnesses and weight of the evidence produced, is
            free to believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted).

      Under 18 Pa.C.S.A. § 309(a),

            It is a defense that the actor engaged in the conduct
            charged to constitute an offense because he was
            coerced to do so by the use of, or a threat to use,
            unlawful force against his person or the person of
            another, which a person of reasonable firmness in
            his situation would have been unable to resist.



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The duress defense is unavailable if defendant, “recklessly placed himself in

a situation where it was probable that he would be subjected to duress.”

18 Pa.C.S.A. § 309(b); see also Commonwealth v. Markman, 916 A.2d

586, 606-607 (Pa. 2007). The elements of duress are (1) an immediate or

imminent threat of death or serious bodily harm; (2) a well-grounded or

reasonable fear that the threat will be carried out; and (3) no reasonable

opportunity    to     escape   except   by    committing   the   criminal    act.

Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa.Super. 1996)

(citation omitted).

      After careful review of the record, we find that the evidence more than

sufficiently disproves appellant’s duress defense.         The Commonwealth

presented testimony from both employees working at Sunoco who interacted

with appellant. Both employees testified that appellant, after writing a note

demanding money from the cash register, told them that his girlfriend had

been taken hostage and that he was threatened with bodily harm if he did

not get the money to whomever was holding his girlfriend hostage.           Their

testimony indicated that appellant’s demeanor was “scary,” and that

appellant exited the Sunoco as soon as the employees told him that they

would be calling the police.

      Appellant testified at trial in his own defense. He testified that before

he entered the Sunoco, he and Beth were walking toward the Sunoco when

Beth took off running down a nearby alleyway. Appellant also testified that



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after passing a note to the cashier at Sunoco, he asked if he could borrow a

telephone in order to call the police because his cell phone was not working.

      We find that the evidence was more than sufficient to allow the trial

court to determine that appellant’s trial testimony was a fabrication and that

he did not act under any threat of duress or serious bodily injury and that he

had every opportunity to avoid committing his criminal acts. The evidence

also established that appellant had ample opportunity to escape or call for

help. Instead of asking the employees at Sunoco to call the police on his

behalf, appellant first passed them a note demanding money from the cash

register. By doing so, appellant acted with the requisite intent to commit a

robbery. Appellant’s testimony is completely uncorroborated, and the trial

court, as fact-finder, is free to disbelieve appellant’s testimony in its

entirety.3 Therefore, his defense of duress is without merit.

      The second issue appellant raises is whether the trial court’s denial of

appellant’s post-sentence motion claiming that his conviction was contrary to

the weight of the evidence was an abuse of discretion.

      Our standard of review for determining whether a verdict is compatible

with the weight of the evidence is well settled:

                   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:


3
 From arrest through trial, appellant provided factually different versions of
what occurred.


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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 the 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 in 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.




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

omitted) (emphasis deleted).

      A fact-finder is free to believe all, part, or none of the evidence

presented.   Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.

2015) (citations omitted). This court cannot assume the task of assessing

the credibility of the witnesses or evidence presented at trial, as that task is

within the exclusive purview of the fact-finder.          Commonwealth v.

Hankerson, 118 A.3d 415, 420 (Pa.Super. 2015) (citations omitted).

Appellant avers that he did not have the requisite intent to be convicted of

attempted robbery because he only sought to “alert the authorities so the

individual holding appellant and [appellant’s] girlfriend hostage would be

apprehended.” (Appellant’s brief at 15.) As the trial court noted, however,

the Commonwealth produced credible evidence that appellant passed a note

to the cashiers at Sunoco demanding that they give him all the money in the

cash register, thereby indicating that appellant did possess the requisite

intent to commit a robbery. (See notes of testimony, 12/10/14 at 71.) We

therefore find the trial court did not abuse its discretion by denying

appellant’s weight of the evidence challenge.

      Judgment of sentence affirmed.




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Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 12/1/2015




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