J-S40036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
ROBERT MILLER,                            :
                                          :
                Appellant                 : No. 238 WDA 2015

     Appeal from the Judgment of Sentence Entered January 12, 2015,
              in the Court of Common Pleas of Fayette County,
           Criminal Division, at No(s): CP-26-CR-0000398-2014

BEFORE:     FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JULY 29, 2015

      Robert Miller (Appellant) appeals from the judgment of sentence of

seven to fifteen years’ incarceration after a jury convicted him of five counts

of robbery; four counts each of terroristic threats and recklessly endangering

another person (REAP); and one count each of theft by unlawful taking and

aggravated assault. We affirm.

      The trial court summarized the testimony from Appellant’s jury trial as

follows.

            On January 13, 2014, Stephanie Kendall was working at
      the Footedale [M]arket with co-worker, Samantha Guseman, and
      owner, Janet Shaffer, when at approximately 8:50 p.m.
      Appellant walked into the store with a bandana on his face and a
      gun pointed at the workers. Appellant approached the counter
      and instructed Kendall and Guseman not to run, but they ran to
      the back of the store nonetheless. Appellant jumped over the
      counter to follow them while pointing the gun and demanding
      money. Guseman began yelling for help from Janet Shaffer and
      Appellant took off in [her] direction. Although out of her sight,


*Retired Senior Judge assigned to the Superior Court.
J-S40036-15


     Kendall could hear an argument and then a gunshot. Kendall
     noted that money was missing from the lottery drawer and that
     the drawer, which had been closed prior to Appellant entering
     the store, was open. Kendall identified Appellant by a physical
     description that included his eyes, height, weight, gender, and
     voice.

           Samantha Guseman confirmed that just prior to the 9:00
     p.m. closing time, Appellant entered the Footedale Market,
     cocked his gun, and told her and Kendall not to run. No
     customers were in the store, but Janet Shaffer and her children
     were in the office and James Fisher, Jr. (“Jim”) was in the
     attached apartment. While Appellant was three to four feet
     away and pointing the gun straight at her, Guseman summoned
     for Shaffer by yelling her name three or four times. Appellant
     kept asking where “she” was, referring to Shaffer, but Guseman
     would not answer him. Appellant left in Shaffer’s direction and
     shortly thereafter Guseman heard a gunshot. Then, Guseman
     heard Appellant running through the store and the lottery drawer
     open.    Guseman confirmed on the television monitor that
     Appellant had left the store and proceed[ed] to check on Jim
     who she had heard say that he “got hit.” Guseman found Jim
     crouched over with blood on the floor and asked if they “knew
     the Miller boys.” Guseman recognized the identity of Appellant
     by his voice when she confirmed that they grew up on the same
     street, had the same circle of friends, and stated, “[Y]ou don’t
     forget somebody you’ve known your whole life.” With regards to
     his features, Guseman testified that only Appellant’s eyes and
     forehead were visible that night, but that his eyes are
     recognizable from the “piercing like bluish color.”

            Janet Shaffer is the owner of the Footedale Market and
     was in the office of the store on the evening of January 13,
     2014, when she heard Guseman and Kendall yelling for her. As
     Shaffer stood up, Appellant met her in the doorway to the office
     demanding money. Shaffer refused to give him money and she
     felt something touch her in the nose, but could not identify it as
     either Appellant’s hand or the gun he was carrying. Appellant
     continued to demand money in a violent and loud manner, and
     Shaffer began yelling for her boyfriend Jim, who was located
     directly behind the office wall in the adjoining apartment. Jim
     entered the office through the apartment doorway and Appellant



                                   -2-
J-S40036-15


     started yelling to “back the ‘F’ up, Jim, back up Jim.” Jim
     slammed Shaffer back into the office portion and closed the
     door. From the other side of the door, Shaffer could hear Jim
     saying that he was shot. Shaffer was unable to provide an exact
     amount of money stolen from the lottery drawer because she
     had not counted it for the evening prior to Appellant entering the
     store, but she was able to estimate the amount to be between
     $60.00 and $100.00.        Shaffer stated that she has known
     Appellant throughout his entire life and that she recognized his
     voice and eyes.

            [Jim] testified that he was at the apartment adjacent to
     the Footedale Market on the evening of January 13, 2014, when
     he heard a commotion from the workers and Shaffer yelling for
     him.     When Jim entered into the office, he saw Appellant
     pointing a gun at Shaffer and then turning towards him, stating
     “Back up, the gun’s loaded, I ain’t playin.”       The rag on
     Appellant’s face was drooping down and Jim immediately
     recognized the identity of Appellant, stating that he knew
     Appellant “since he was born.” Jim was able to slam a door shut
     between Appellant and Shaffer and he attempted to jump back
     into the apartment when Appellant fired the gun hitting Jim with
     a bullet through the kneecap.         With regards to medical
     treatment, Jim had a plate put in his leg because he was shot
     through the joint where his knee bends and anticipates a knee
     replacement in the future. Jim explained that the bullet “blew
     [his] femur” and “destroyed [his] knee.”

           Trooper James A. Pierce of the Pennsylvania State Police, a
     criminal investigator, recovered a bullet between the hallway and
     the front of the store.

            At trial, Appellant presented the testimony of Natalie Sykes
     in his defense. Sykes testified that she and Appellant were on-
     and-off boyfriend and girlfriend, and that he spent the entirety of
     the day at her house, except for a trip to the gas station and
     drug store around five o’clock in the afternoon. Sykes testified
     that the car used to go on the errands at five o’clock belonged to
     Appellant’s mother and that when Appellant returned to Sykes’s
     house, Appellant’s mother took the car, leaving him and Sykes
     without a vehicle. According to Sykes, the distance from her
     home to Footedale Market is fifteen minutes by car and Appellant



                                    -3-
J-S40036-15


      did not leave until after nine o’clock when Sykes told him to
      leave to avoid the police.

Trial Court Opinion, 3/31/2015, at 2-6 (citations omitted).

      Appellant was arrested and charged with the aforementioned offenses

in connection with this incident. A jury trial was held on December 8 and 9,

2014, and the jury returned a verdict of guilty on all charges. Appellant was

sentenced to seven to fifteen years’ incarceration on January 12, 2015. No

post-sentence motions were filed. Appellant filed timely a notice of appeal,

and both Appellant and the trial court complied with Pa.R.A.P. 1925.

      We consider Appellant’s first two issues on appeal together. In his first

issue, Appellant argues that “the evidence presented by the Commonwealth

was against the weight of the evidence.” Appellant’s Brief at 12. Throughout

the entire argument section; however, Appellant cites repeatedly to the

standard for a claim challenging the sufficiency of the evidence. Id. at 12-

20. Appellant’s second issue on appeal purports to challenge the sufficiency

of the evidence. Id. at 21-22. Whether considering Appellant’s arguments

as challenging the weight of the evidence or the sufficiency of the evidence,

Appellant is not entitled to relief.

      “[A] weight of the evidence claim must be preserved either in a post-

sentence motion, by a written motion before sentencing, or orally prior to

sentencing.   Failure to properly preserve the claim will result in waiver[.]”

Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013). Instantly,



                                       -4-
J-S40036-15


Appellant did not file a post-sentence motion, a written motion before

sentencing, or object orally prior to sentencing.        Accordingly, any issue

challenging the weight of the evidence has been waived.

      We consider next Appellant’s challenges to the sufficiency of the

evidence. We can discern only two claims from the argument section of his

brief. First, Appellant argues that he did not inflict “serious bodily injury.”

Appellant’s Brief at 19.     Also, Appellant asserts that the eyewitness

testimony    was    inconsistent   and     unreliable,   and   therefore,   the

Commonwealth did not prove beyond a reasonable doubt that it was

Appellant who committed the crime. Id. at 16-19, 21-22.

      In considering these claims, we keep in mind our well-settled standard

of review.

      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
      [finder] of fact while passing upon the credibility of witnesses



                                     -5-
J-S40036-15


        and the weight of the evidence produced, is free to believe all,
        part or none of the evidence.

        Further, in viewing the evidence in the light most favorable to
        the Commonwealth as the verdict winner, the court must give
        the prosecution the benefit of all reasonable inferences to be
        drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

        Before we address Appellant’s claim that he did not inflict serious

bodily injury, we consider whether it was preserved for our review.

        In order to preserve a challenge to the sufficiency of the
        evidence on appeal, an appellant’s Rule 1925(b) statement must
        state with specificity the element or elements upon which the
        appellant alleges that the evidence was insufficient. Such
        specificity is of particular importance in cases where, as here,
        the appellant was convicted of multiple crimes each of which
        contains numerous elements that the Commonwealth must
        prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

citation and quotations omitted).

        Serious bodily injury is an element of both robbery and aggravated

assault. Appellant was convicted of five counts of robbery, including counts

for actually inflicting serious bodily injury1 and threatening to inflict serious




1
    18 Pa.C.S. § 3701(a)(1)(iv).



                                      -6-
J-S40036-15


bodily injury.2     Appellant was also convicted of aggravated assault for

causing serious bodily injury with a weapon.3

        Appellant’s Pa.R.A.P. 1925(b) statement, related to robbery, states as

follows: “The evidence did not show that Appellant was the individual that

committed the crime of robbery in the eyewitness testimony was unreliable,

and     no   physical    evidence   pointed   to     Appellant[.]”   CONCISE     ISSUE,

2/19/2015, at 1.          Appellant does not mention his aggravated assault

conviction in his concise statement.              Because Appellant did not state

specifically that he was contesting the serious bodily injury element of the

aforementioned crimes in his concise statement, he has not preserved this

issue for our review.4

        We    now       consider    Appellant’s    various    arguments       that   the

Commonwealth did not produce enough evidence to prove that it was

Appellant     who   perpetrated      the   crimes.      Appellant    argues   that   the

2
    18 Pa.C.S. § 3701(a)(1)(ii).
3
    18 Pa.C.S. § 2702(a)(4).
4
  Regardless, Appellant’s argument is puzzling. Serious bodily injury is
defined as “[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” 18 Pa.C.S. § 2301.
Instantly, Appellant shot Jim in the leg, which “blew out [his] femur,” and
required him to have surgery to repair the damage. N.T., 12/8-9/2014, at
63. Jim further testified that he underwent therapy to regain use of that leg
and that he may have to have a total knee replacement in the future. Id.
Clearly, this testimony, if believed by the jury, satisfies even the most
conservative definition of serious bodily injury.


                                           -7-
J-S40036-15


Commonwealth failed to produce “the alleged weapon used at the scene of

the crime (specifically an alleged gun)” and the sweatshirt worn by the

perpetrator. Appellant’s Brief at 17, 18.   Appellant further argues that the

eyewitness identifications were unreliable because 1) the eyewitnesses

testified that Appellant’s eyes were blue, when Appellant’s eyes are actually

green; and, 2) the eyewitnesses placed the gun in Appellant’s right hand,

even though Appellant was left-handed. Id. at 21-22.

      We understand that “courts of this jurisdiction have recognized that

where evidence offered to support a verdict of guilt is so unreliable and/or

contradictory as to make any verdict based thereon pure conjecture, a jury

may not be permitted to return such a finding.” Commonwealth v.

Farquharson, 354 A.2d 545, 550 (Pa. 1976).            However, the standard

announced in Farquharson “applies only in such cases where the patent

unreliability of the testimony is such as to render a verdict of guilt based

thereupon as no more than pure conjecture.” Commonwealth v. Hudson,

414 A.2d 1381, 1385 (Pa. 1980) (quotations omitted).

      Instantly, the Commonwealth presented testimony of three witnesses,

all of whom identified Appellant as the perpetrator of the crime.

            First, Samantha Guseman who recognized the identity of
      Appellant by his voice and explained she was familiar with
      Appellant because they grew upon the same street, had the
      same circle of friends, and recognized Appellant’s distinctive
      eyes. Next, the testimony of Janet Shaffer who knew Appellant
      through his entire lifetime, Appellant was a customer of her



                                     -8-
J-S40036-15


      store, and that she recognized his voice and eyes. Lastly, the
      testimony of [Jim] who testified that he knew Appellant “since he
      was born” and that the bandana covering Appellant’s face had
      drooped down enough to identify him. Further Appellant spoke
      to [Jim] by name, telling him to “back the ‘F’ up, Jim, back up
      Jim.”

Trial Court Opinion, 3/31/2015, at 10 (citations to notes of testimony

omitted).

      Based on this testimony, viewed in the light most favorable to the

Commonwealth as the verdict winner, we cannot agree that the evidence

was as unreliable and speculative as claimed by Appellant. These witnesses

lived in a small town where Appellant was known to them. They recognized

his voice, as well as other features. Such testimony, if believed by the jury,

was sufficient to identify Appellant as the perpetrator.            See, e.g.,

Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa. Super. 2006) (“We

may not weigh the evidence or substitute our judgment for that of the fact-

finder. … When evaluating the credibility and weight of the evidence, the

fact-finder is free to believe all, part, or none of the evidence.”).

Accordingly, Appellant is not entitled to relief on this basis.

      Appellant next contends the trial court erred with respect to one of its

jury instructions. Appellant’s Brief at 23-24.5      However, “[t]rial counsel’s




5
 Appellant cites to the jury instruction regarding the testimony of Natalie
Sykes, the alibi witness, which reads as follows:



                                      -9-
J-S40036-15


failure to object to the jury instruction is fatal to Appellant’s claim that the

trial court erred in its charge to the jury.” Commonwealth v. Garang, 9

A.3d 237, 245 (Pa. Super. 2010). Thus, because counsel did not object to

this jury instruction, Appellant waived his challenge thereto, and Appellant is

not entitled to relief on this basis.

      Finally, “Appellant contends that the Commonwealth did not rebut his

alibi witness’[s] testimony.” Appellant’s Brief at 25.   Specifically, Appellant

argues that the Commonwealth did not rebut Natalie Sykes’ testimony that

she was with Appellant “the entire night in question.” Id. Appellant argues

that “[s]imply relying on the misidentification of [the] Commonwealth

witnesses does not rebut the alibi defense.” Id.

            [T]he Commonwealth is not required to rebut every
      specific piece of evidence introduced under an alibi defense. …
      The jury was not required to believe appellant’s alibi witness….
      The jury can believe all, some or none of the testimony of any
      witness[.] The burden of the Commonwealth is to present
      evidence that the defendant was present at the scene of the
      crimes charged. This it did with sufficiency to prove appellant’s
      presence beyond a reasonable doubt. The fact that the jury



      In this case Natalie Sykes took the stand and you heard that she
      had been convicted of a crime: Hindering Apprehension or
      Concealment. The only purpose for which you may consider this
      evidence of prior conviction is to decide whether or not to
      believe all or part of Natalie Sykes’ testimony. In doing so you
      may consider the type of crime committed, how long ago it was
      committed and how it may affect the likelihood that Natalie
      Sykes has testified truthfully in this case.

N.T., 12/8-9/2014, at 104.


                                        - 10 -
J-S40036-15


      chose to believe the Commonwealth’s evidence and disbelieve
      appellant’s alibi defense is certainly not grounds for reversal.

Commonwealth v. Walker, 365 A.2d 1279, 1281 (Pa. Super. 1976)

(citations omitted).

      Instantly, the Commonwealth presented three eyewitnesses who

identified Appellant as the perpetrator of the crimes.     The jury could have

believed all or part of this testimony, or disbelieved the testimony of the alibi

witness, to reach its verdict. As such, Appellant is not entitled to reversal on

this basis.

      Appellant has not presented any issue worth of relief. Accordingly, we

affirm his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/29/2015




                                     - 11 -
J-S40036-15




              - 12 -
