J-S87034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

KEVIN WILLIAMS

                             Appellant               No. 2282 MDA 2015


              Appeal from the Judgment of Sentence July 8, 2013
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001688-2012


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 29, 2016

        Kevin Williams appeals from the judgment of sentence, entered in the

Court of Common Pleas of Luzerne County, following his conviction of

robbery,1 conspiracy to commit robbery,2 criminal trespass,3 theft by

unlawful taking,4 receiving stolen property,5 and conspiracy to commit theft

by unlawful taking.6 After our review, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 3503(a)(1)(i).
4
    18 Pa.C.S. § 391(a).
5
    18 Pa.C.S. § 3925(a).
(Footnote Continued Next Page)
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        Williams and his co-conspirator, William Gronosky, entered the

Carousel Lounge at 9:00 a.m. on March 15, 2012 and robbed the owner, at

gunpoint, of $3,000.00.         Co-conspirator Courtney Sadusky drove Williams

and Gronosky to the Carousel Lounge, and, after the robbery, she drove

them to her parents’ home in Bear Creek.           Ultimately, Sadusky gave a

statement implicating Williams and Gronosky.

        At trial, before a jury, Jules Greenberg, the owner of the Carousel

Lounge, testified that on March 15, 2012, at approximately 9:15 a.m., he

was working in his office at the Carousel Lounge when two individuals

rushed in, pushed him over his office chair, and knocked him to the ground.

Each was wearing a hoodie and gloves, and had his face covered with a

black ski mask.         Additionally, each was armed with a large black gun.

Because he saw one of the robber’s wrists, Greenberg was able to tell police

that one of the attackers was black.

        Greenberg testified that the two individuals cleaned out two of the

business’ safes, containing about $3,000.00, and they took his keys, money

and cell phone.        Both Greenberg and Sadusky testified against Williams.

Sadusky, the Commonwealth’s key witness, testified that she picked up both

Williams and Gronosky at Williams’ residence.        When they arrived at the

Carousel Lounge, she pulled her vehicle behind the business. She testified

                       _______________________
(Footnote Continued)


6
    18 Pa.C.S. § 903.



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that when they left the car, Williams and Gronosky went down an

embankment into the Carousel Lounge. She saw them exit the lounge with

their pockets stuffed and things hanging from their waists. She drove them

to her mother and stepfather’s house, in Bear Creek, where they went

through the money and other items. Sadusky was paid $85 to drive. She

then drove the two to the Wyoming Valley Mall, but the guns, gloves and the

bank bag taken from the lounge and the bag where the items were placed

were left in Sadusky’s car. Although Williams and Gronosky had told her to

get rid of the items, Sadusky kept them in her closet in the home she shared

with her biological father.   Sadusky then returned to the Wyoming Valley

Mall, picked up Williams and Gronosky, and brought them back to Williams’

residence.

      The jury convicted Williams of all charges, and the court sentenced

Williams to an aggregate term of 10 to 20 years’ imprisonment.        Williams

filed post-sentence motions, which the trial denied on August 29, 2013. On

direct appeal, this Court affirmed, finding Williams had failed to preserve any

issues for appellate review. Commonwealth v. Williams, 1795 MDA 2013,

filed August 26, 2014 (unpublished decision). On April 17, 2015, Williams

filed a motion for post-conviction relief under the Post-Conviction Relief Act,

42 Pa.C.S.A. §§ 9741-46 (“PCRA”).           The PCRA court granted relief,

reinstating Williams’ appellate rights nunc pro tunc, and Williams filed a

Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial

court filed a Rule 1925(a) opinion.

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      On appeal, Williams raises three issues:

             1. Was the evidence at trial, even when viewed in a
                light most favorable to the Commonwealth,
                insufficient as a matter of law to establish [Williams’]
                guilt beyond a reasonable doubt with respect to all
                offenses, counts 1-6, where the Commonwealth
                failed to establish that [Williams] engaged in the
                alleged conduct or was the perpetrator of each
                offense?

             2. Was the verdict on all charges, counts 1-6, contrary
                to the weight of the evidence presented to support a
                finding of guilt beyond a reasonable doubt to
                establish that [Williams] engaged in the alleged
                conduct or was the perpetrator of each offense?

             3. Whether [Williams] received an illegal sentence,
                pursuant to 42 Pa.C.S.A. § 9712, in the nature of a
                five (5) year mandatory minimum sentenced on
                Count 1, robbery, contrary to Alleyne v. U.S., 133
                S. Ct. 2151 (2013) and Commonwealth v.
                Newman, 99 A.3d 83 (Pa. Super. 2014) and their
                progeny?

Appellant’s Brief, at 4.

      With respect to Williams’ sufficiency claim, our standard of review is

well-settled:    whether,   viewed   in   the   light   most   favorable   to   the

Commonwealth as verdict winner, the evidence at trial was sufficient to

enable the fact-finder to find every element of the crime beyond a

reasonable doubt. Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.

Super. 2015). This Court may not re-weigh the evidence and substitute our

judgment for the fact-finder. In addition, the facts and circumstances

established by the Commonwealth need not preclude every possibility of

innocence.      Id. “Any doubts regarding a defendant’s guilt may be resolved

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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.” Id. (citation omitted).    Further, the Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence. Id. The trier

of fact is free to believe all, part, or none of the evidence adduced at trial.

Commonwealth v. Fahy, 516 A.2d 689 (Pa. 1986).

      Here, the evidence presented at trial, in particular the testimony of

Sadusky and Greenberg, established that Williams, in the course of

committing a theft, threatened another with or intentionally put that person

in fear of immediate serious bodily injury.     18 Pa.C.S. § 3701(a)(1)(ii).

Citing inconsistencies in testimony, Williams argues that the Commonwealth

did not prove Williams was the perpetrator.     Williams’ argument conflates

weight and sufficiency; the premise of his argument is that Sadusky’s and

Greenberg’s testimony is not credible. He points to minor discrepancies in

both Sadusky’s and Greenberg’s testimony with respect to the duration of

the robbery and the description of the gloves the perpetrators were wearing

during the robbery. It is only when contradictory evidence is substantial and

goes to a material issue, tending “to undermine the integrity of the verdict

that the court, feeling the pangs of conscience, should intervene to take

from the jury its fact-finding role.” Commonwealth v. Yocum, 418 A.2d

534 (1980). Thus, even uncorroborated testimony of a prosecution witness

may be sufficient to convict if the trier of fact finds the witness credible.

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Fahy, supra.       We find the evidence sufficient to support the verdict. This

claim is meritless.7

       Next, Williams argues the verdict was against the weight of the

evidence.

       An allegation that the verdict is against the weight of the
       evidence is addressed to the discretion of the trial court. 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. A trial judge must do more
       than reassess the credibility of the witnesses and allege that he
       would not have assented to the verdict if he were a juror. Trial
       judges, in reviewing a claim that the verdict is against the
       weight of the evidence, do not sit as the thirteenth juror.
       Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations

and footnote omitted).

       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

____________________________________________


7
 We note that a challenge to the weight of the evidence concedes that the
evidence was sufficient to sustain the verdict. Commonwealth v. Manley,
985 A.2d 256 (Pa. Super. 2009); Commonwealth v. Davis, 799 A.2d 860,
865 (Pa. Super. 2002).



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      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Id. at 753 (citations omitted).

      Here, Williams’ argument again focuses on the inconsistencies between

Sadusky’s and Greenberg’s testimony describing the gloves the perpetrators

were wearing.      N.T. Trial, 5/6/13, at 148-49, 155.       Williams points to

Sadusky’s statement that she had kept both pairs of gloves in her home, but

only one pair of gloves was found there.         Id. at 143, 179-180.    He also

points to inconsistencies in Sadusky’s and Greenberg’s testimony as to the

type of gloves worn.       Id. at 150-51, 164.         Further, Williams assails

Sadusky’s credibility because she pled guilty to reduced charges. Williams

claims that this is reason to question her veracity.     We disagree.

      The   jury    was   free    to   resolve   any   inconsistencies   in   the

Commonwealth’s favor. See Commonwealth v. Horne, 89 A.3d 277, 286

(Pa. Super. 2014) (appellant could not prevail on weight of the evidence

claim as “the jury resolved the inconsistencies among the testimonies as it

saw fit and reached a verdict.”).      The trial court acknowledged “minimal

inconsistent testimony,” but stated that it was “anything but shocked by the

jury’s verdict,” instead finding the evidence “overwhelmingly” established

Williams’ guilt. Trial Court Opinion, 1/13/16, at 5.     Other than pointing out

minor inconsistencies in their testimony, Williams has failed to produce any

valid argument suggesting that Greenberg’s and Sadusky’s testimony should

be considered so uncertain as to cause the verdict to shock the court's



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conscience. After our review of the record and the arguments on appeal, we

find no abuse of discretion in the court’s determination that its conscience

was not shocked by the jury’s verdict.           Widmer, supra.   Accordingly,

Williams’ weight claim does not warrant relief.

       Finally, Williams claims his sentence is illegal pursuant to Alleyne,

supra and Newman, supra.8 Williams had a prior record score of 4. The

court imposed a standard-range sentence on the robbery charge, 60 to 120

months’ imprisonment, and a consecutive standard range sentence of 48 to

96 months’ imprisonment on the criminal conspiracy to commit robbery

charge. The court sentenced Williams to a standard-range sentence of 12 to

24 months’ imprisonment on the criminal trespass charge, also to be served

consecutively. The remaining counts, theft, receiving stolen property, and

criminal conspiracy to commit theft, merged with robbery. N.T. Sentencing,

7/8/13, at 6-7.       Thus, the court imposed an aggregate standard-range

sentence of 120 to 240 months’ (ten to twenty years) incarceration. As the

court stated, “had [Williams] received a mandatory five-year pursuant to

section 9712(a), his argument would be correct.”          Trial Court Opinion,

1/13/16, at 6.      However, despite the fact that the Commonwealth stated
____________________________________________


8
   In Alleyne, the United States Supreme Court held that a fact that
increases the sentencing floor is an element of the crime and, therefore,
must be submitted to the factfinder and proven beyond a reasonable doubt.
Alleyne v. United States, 570 U.S., 133 (2013). See also Newman,
supra (Pennsylvania Supreme Court declared mandatory minimum
sentencing scheme found in Section 9712.1 unconstitutional in its entirety).



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that it would seek a mandatory five-year minimum on the robbery charge,

N.T. Sentencing, 7/8/13, at 3, the court made no determination that the

mandatory minimum applied, and instead stated that it was imposing

sentence under the standard guideline ranges.   Id. at 6-7. Moreover, the

sentencing order and court commitment form indicate no mandatory

minimum term was imposed. Therefore, Alleyne is not implicated, and no

relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016




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