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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

CLINTON BROWN

                      Appellant                No. 1046 EDA 2016


         Appeal from the Judgment of Sentence August 13, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0004946-2014


                                  *****

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellee

                 v.

CLINTON BROWN

                      Appellant                No. 3151 EDA 2015


         Appeal from the Judgment of Sentence August 13, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0004944-2014


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                    FILED AUGUST 24, 2017
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          Clinton Brown appeals from his judgments of sentence1 entered in the

Court of Common Pleas of Philadelphia County, following his conviction for

robbery,2 conspiracy to commit robbery,3 and conspiracy to commit

aggravated assault.4 Upon review, we affirm.

          Sharday Williams testified that on January 30, 2014, she and her

boyfriend, Derrick Moye, left Moye’s house and were approaching her car

when Brown approached her from behind, snatched her wallet, and started

running.      When Moye started to chase after Brown, Rasheed Hall stepped

out from in front of a parked car and fired one shot into Moye’s chest from

approximately one foot away.          Brown and Hall then fled together on foot,

running in the same direction. When the police arrived, Williams described

the assailant who stole her wallet as a black male in his twenties who was

six feet and one inch tall, with a thin build and brown complexion, and

wearing a black hoodie and black pants. Williams described the shooter as

wearing a black jacket with a “Dickies” brand logo on the front and blue

pants.



____________________________________________


1
  This Court has consolidated these appeals, sue sponte, pursuant to
Pa.R.A.P. 513.
2
    18 Pa.C.S. § 3701.
3
    18 Pa.C.S. § 903.
4
    Id.



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      Philadelphia Police Officer Matthew Lally testified that on January 30,

2014, he was working in the neighborhood where the robbery occurred when

he received information about the shooting and robbery and received a

“flash” description of one of the assailants. The flash information described

one assailant as a black male in his twenties with a thin build, facial tattoos,

and a black hoodie. Based on his experience as an officer for the 39 th Police

District for ten years, and his numerous interactions with Brown during that

time, Officer Lally knew that Brown matched the flash description. Officer

Lally went to Brown’s home and spoke with his mother. While there, Brown

called his mother, and Officer Lally got on the phone and asked Brown where

he was. Brown claimed to be with his girlfriend in West Philadelphia. Officer

Lally left the house, and continued searching for Brown.         Approximately

twenty to thirty minutes later, Officer Lally found Brown, together with Hall

and a third man, several blocks away.

      Williams was brought to the street where Brown and Hall had been

detained. She identified Brown as the one who had robbed her and Hall as

the one who had shot Moye. Williams testified that her identification of them

was based solely on their clothing.     Brown and Hall were then taken into

custody, and their cell phones were confiscated during a search incident to

arrest.   Although Hall’s phone was locked, investigators secured access to

Brown’s phone. The call logs of Brown’s phone listed multiple calls to and

from a contact listed as “Sheed,” including two calls immediately after the

shooting. When investigators called this number, Hall’s phone rang.

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     Investigators obtained a warrant to search Hall’s home, where they

discovered several rounds of ammunition.      Among the ammunition were

fourteen .22 caliber rounds. A silver .22 caliber revolver was found roughly

one block from Brown’s house. The gun had five live rounds and one spent

casing. Hall’s clothes tested positive for gunpowder residue.

     Detective Ted Wolkiewicz testified that he interviewed Brown on

January 31, 2014.      During the interview, Brown refused to sign any

statements prepared by Detective Wolkiewicz, but admitted verbally that he

was the one who had grabbed Williams’ wallet, although he did not know

that Hall had a gun at the time. Despite this admission, Brown attempted to

procure alibi testimony from an ex-girlfriend, Tyenesha Leach. However, in

Leach’s statement to Detective Wolkiewicz, she admitted that she was not

with Brown that night, and she was testifying because Brown had asked her

to support him.

     Brown was charged in two separate dockets, one of which contained

the charge for conspiracy to commit aggravated assault (Brown I) and the

other which contained the charges for robbery and conspiracy to commit

robbery (Brown II). However, these two dockets were consolidated for the

purpose of trial. A jury convicted Brown on May 22, 2015. On August 13,

2015, Brown was sentenced to 72 to 144 months’ imprisonment for criminal

conspiracy to commit aggravated assault, 102 to 204 months’ imprisonment

for robbery, and 78 to 156 months’ imprisonment for conspiracy to commit

robbery.   The robbery and conspiracy to commit robbery sentences were

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ordered to run concurrent to each other, while the conspiracy to commit

aggravated assault sentence was ordered to run consecutive to the other

sentences.     On August 24, 2015, Brown filed a post-sentence motion for

reconsideration of sentence for the Brown I charges, which was denied on

September 17, 2015. On April 4, 2016, Brown filed a timely notice of appeal

for Brown I. On April 4, 2016, Brown filed a timely notice of appeal nunc

pro tunc for Brown II. Brown filed a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal on February 16, 2016 for Brown I.

Brown filled a Rule 1925(b) concise statement of errors complained of on

appeal on April 4, 2016 for Brown II. The trial court filed its Rule 1925(a)

opinion for Brown I on May 2, 2016, and its Rule 1925(a) opinion for

Brown II on July 1, 2016.5

        Brown raises the following issues on review:

        A. Did the trial court err when it found that there was sufficient
        evidence to prove beyond a reasonable doubt, the crimes of
        robbery, criminal conspiracy (to commit robbery) and criminal
        conspiracy (to commit aggravated assault)?

        B. Did the trial court err when it sentenced appellant Clinton
        Brown to a term of incarceration which departed from the
        Pennsylvania sentencing guidelines for the criminal offenses of
        robbery and criminal conspiracy (to commit aggravated assault)
        and was in the aggravated range for criminal conspiracy (to
        commit robbery) which was manifestly excessive?


Brief of Appellant, at 2.
____________________________________________


5
    The trial court filed the same Rule 1925(a) opinion for both appeals.



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      Brown first claims that there was insufficient evidence to support his

conviction. Our standard of review upon a challenge to the sufficiency of the

evidence 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 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
      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. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001),

quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.

2000) (citations and quotation marks omitted).

      Brown does not argue that the elements of robbery or aggravated

assault were not satisfied, but instead argues that the evidence was

insufficient to prove his identity as one of the two men involved in the

robbery. In addition, Brown argues that there was insufficient evidence to

show that Brown and Hall entered into a conspiracy.            Both of these

argument lack merit.

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      As to Brown’s first argument, he relies on the fact that Williams never

saw his or Hall’s face and on the fact that Williams’s identification of them

was based solely on clothing. He contends, therefore, that identity could not

be proven beyond a reasonable doubt. “Although common items of clothing

and general physical characteristics are usually insufficient to support a

conviction, such evidence can be used as other circumstances to establish

the identity of a perpetrator.” Commonwealth v. Orr, 38 A.3d 868, 874

(Pa. Super. 2011) (en banc).

      Upon review of the record and viewing all evidence in a light most

favorable to the Commonwealth, DiStefano, supra, we find that there was

sufficient evidence to prove Brown’s and Hall identification and involvement

in the robbery. First, Brown lied about his location when Officer Lally asked

Brown where he was. Brown also tried to coerce Leach into giving false alibi

testimony. Both of these reflect Brown’s consciousness of guilt and support

the jury’s determination that Brown was the one who robbed Williams.

Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990) (citation

omitted). Hall’s identity as the shooter was supported by other evidence in

addition to Williams’s identification.   The search of Halls’ home produced

numerous rounds of ammunition, including the type of ammunition used by

a gun with one spent casing found near Brown’s house and the location were

Brown and Hall were arrested.        Hall’s clothing also tested positive for

gunpowder residue.     Brown’s identity of the robber was supported by his

own admission that he was the one who grabbed Williams’s wallet.

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Therefore, the claim that the identification was based solely on clothing is

meritless.    See Orr, 38 A.3d at 876 (finding that, while appellant’s

identification by victim was based on clothing, evidence that appellant was

located near location of robbery shortly after it occurred and possessed

exact amount stolen from victim was sufficient evidence to prove identity).

      Brown also argues that there was insufficient evidence to prove that

he entered into a conspiracy with Hall in order to commit robbery and

aggravated assault. Criminal conspiracy is defined, in relevant part, as:

      (a)    Definition of conspiracy. — A person is guilty of
      conspiracy with another person or persons to commit a crime if
      with the intent of promoting or facilitating its commission he:

            (1) agrees with such other person or persons that they or
      one or more of them will engage in conduct which constitutes
      such crime or an attempt or solicitation to commit such crime; or

             (2) agrees to aid such other person or persons in the
      planning or commission of such crime or of an attempt or
      solicitation to commit such crime.


18 Pa.C.S. § 903(a)(1-2) (bold and italics in original).        A conspiracy

agreement “can be inferred from a variety of circumstances, including, but

not limited to, the relation between the parties, knowledge of and

participation in the crime, and the circumstances and conduct of the parties

surrounding the criminal episode.”    Commonwealth v. Perez, 931 A.2d

703, 708 (Pa. Super. 2007) (quoting Commonwealth v. Jones, 874 A.2d

108, 121-22 (Pa. Super. 2005)).




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      Upon review of the record and viewing all evidence in a light most

favorable to the Commonwealth, DiStefano, supra, and given our above

finding on identification, we find that there was sufficient evidence to prove

that a criminal conspiracy existed. Brown argues that the fact that he and

Hall were located together and had numerous phone calls with each other

suggests that the two were friends.     However, this evidence also supports

the conclusion that they had an agreement to commit the robbery together

and to use force to escape if necessary. In addition, the fact that the two

fled together after the commission of the crime, and called each other twice

immediately afterwards, supports the conclusion that Brown and Hall had an

agreement to commit this crime.         Therefore, we find that there was

sufficient evidence to allow the jury to conclude beyond a reasonable doubt

that Brown and Hall entered into a conspiracy to commit robbery and

aggravated assault. Perez, supra.

      Brown’s last claim is that his sentence was manifestly excessive.

Initially, we note that while Brown argues in his brief that each of his three

sentences   were   excessive,   Brown   only   challenged   his   sentence   for

conspiracy to commit aggravated assault in his post-sentence motion for

reconsideration of sentence. Consequently, we find that Brown waived his

challenges of excessiveness for his robbery sentence and for his conspiracy

to commit robbery sentence. See Pa.R.A.P. 302; see also Commonwealth

v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (issues challenging




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discretionary aspects of sentencing must be raised in post-sentence motion

or during sentencing proceeding).

     Brown’s claim involves a discretionary aspect of his sentence.    “It is

well-settled that appeals of discretionary aspects of a sentence are not

reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d

592, 595 (Pa. Super. 2006). Before a challenge to the discretionary aspects

of a sentence will be heard on the merits, an appellant must set forth in his

brief a separate and concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence.

Pa.R.A.P. 2119(f). An appeal of the discretionary aspects of a sentence will

only be granted when there is a substantial question that the sentence

imposed was not appropriate under the Sentencing Code. Pa.C.S. § 9781.

Historically, this Court has found a substantial question exists for the

purposes of section 9781 when the Rule 2119(f) statement reveals a

plausible argument that procedures followed by the sentencing court were

either inconsistent with a specific provision of the Sentencing Code or

contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc) (citations omitted).

     Brown has included the necessary Rule 2119(f) statement in his brief.

In his statement, Brown argues that his sentence was an abuse of discretion

because his prior record was generated largely from arrests when he was a

juvenile, and the court did not adequately consider the mitigating evidence.

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      Philadelphia Police Officer Matthew Lally testified that on January 30,

2014, he was working in the neighborhood where the robbery occurred when

he received information about the shooting and robbery and received a

“flash” description of one of the assailants. The flash information described

one assailant as a black male in his twenties with a thin build, facial tattoos,

and a black hoodie. Based on his experience as an officer for the 39 th Police

District for ten years, and his numerous interactions with Brown during that

time, Officer Lally knew that Brown matched the flash description. Officer

Lally went to Brown’s home and spoke with his mother. While there, Brown

called his mother, and Officer Lally got on the phone and asked Brown where

he was. Brown claimed to be with his girlfriend in West Philadelphia. Officer

Lally left the house, and continued searching for Brown.         Approximately

twenty to thirty minutes later, Officer Lally found Brown, together with Hall

and a third man, several blocks away.

      Williams was brought to the street where Brown and Hall had been

detained. She identified Brown as the one who had robbed her and Hall as

the one who had shot Moye. Williams testified that her identification of them

was based solely on their clothing.     Brown and Hall were then taken into

custody, and their cell phones were confiscated during a search incident to

arrest.   Although Hall’s phone was locked, investigators secured access to

Brown’s phone. The call logs of Brown’s phone listed multiple calls to and

from a contact listed as “Sheed,” including two calls immediately after the

shooting. When investigators called this number, Hall’s phone rang.

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