J-S67039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    AMEEN MCNAIR                               :
                                               :
                      Appellant                :       No. 1570 EDA 2016

             Appeal from the Judgment of Sentence January 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013671-2014


BEFORE:      GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED NOVEMBER 02, 2017

        Appellant, Ameen McNair, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial conviction for robbery.1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.2

        Appellant raises two issues for our review:

           WHETHER THE EVIDENCE WAS INSUFFICIENT TO
           CONVICT APPELLANT OF ROBBERY, 18 PA.C.S.A. §
____________________________________________


1   18 Pa.C.S.A. § 3701(a)(1)(ii).

2We add that Appellant timely filed post-sentence motions on January 12,
2016, which were denied by operation of law on May 12, 2016.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67039-17


         3701(A)(1)(II)?

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
         WHEN IT ISSUED AN EXCESSIVELY PUNITIVE SENTENCE
         OF TEN (10) TO TWENTY (20) YEARS’ INCARCERATION
         FOR ROBBERY, 18 PA.C.S.A. § 3701(A)(1)(II)?

(Appellant’s Brief at 7).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively     discusses   and   properly   disposes   of   the   questions

presented. (See Trial Court Opinion, filed March 28, 2017, at 2-9) (finding:

(1) following robbery, Victim described perpetrators to police and items

stolen; Victim told police he saw perpetrators flee in Crown Victoria vehicle;

police stopped Crown Victoria vehicle less than one mile from crime scene

and found Appellant and co-defendant in backseat with female driver; Victim

immediately identified Appellant and co-defendant as perpetrators; Victim

also identified his assailants in written statement given later at police

station; from vehicle, police recovered Victim’s cell phone case (which had

distinct white Punisher face on back) and Victim’s white Soul headphones,

which Victim had described to police as stolen immediately following

robbery; jury was free to reject co-defendant’s testimony that he acted

alone and Appellant was mere innocent bystander; fact that jury acquitted

Appellant of other charges does not require setting aside robbery conviction;

Appellant took Victim’s cell phone and demanded pass code while co-

                                      -2-
J-S67039-17


defendant held Victim at gunpoint; Victim’s identification testimony coupled

with additional circumstantial evidence was sufficient to prove Appellant’s

guilt beyond reasonable doubt; (2)3 record demonstrates court considered

all pertinent factors before imposing sentence; court reviewed Appellant’s

mental health evaluation and pre-sentence investigation report; court heard

argument from both parties before imposing sentence; court considered

manner in which crime was committed, its impact on Victim, societal need

for protection, sentencing guidelines, as well as Appellant’s age, mental

aptitude, educational attainment, employment history, prior criminal record,

and rehabilitative needs; court did not consider impermissible factors4).

Accordingly, we affirm on the basis of the trial court’s opinion.

       Judgment of sentence affirmed.


____________________________________________


3 Appellant has complied with the requirements for review of his sentencing
claim. See Commonwealth v. Evans, 901 A.2d 528 (Pa.Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (explaining challenge to
discretionary aspects of sentencing is not automatically reviewable as matter
of right; prior to reaching merits of claim, we conduct four-part test to
determine whether appellant has filed timely notice of appeal, preserved
issue at sentencing or in timely filed post-sentence motion, complied with
Pa.R.A.P. 2119(f), and raised substantial question). Nevertheless, Appellant
did not preserve in his post-sentence motion his argument that his sentence
constituted “cruel and unusual punishment” because it triggered an
additional consecutive sentence for a violation of parole in another case.
Thus, this particular claim is waived. See id.

4In detailing its reasons for the sentence imposed, the court emphasized the
current conviction is Appellant’s fourth robbery offense.        (See N.T.
Sentencing, 1/8/16, at 18-23.)



                                           -3-
J-S67039-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2017




                          -4-
                                                                                                  Circulated 10/18/2017 03:33 PM




              IN THE COURT OF COMMON PLEAS OF PIDLADELPHIA                                      COUNTY
                                                 CRIMINAL TRIAL DIVISION


 COMMONWEAL               TH OF PENNSYLVANIA                                    CP-51~CR-0013671-2014


                                v.
                                                    FILED
                                                                                SUPERIOR COURT
                                                                                                           FILED
                                                  MAR 28 2017                                               MAR 2 8   201!1-
 AMEEN MCNAIR                                                                   1570 EDA 2016
                                            ,,........ ot Judicla1 ReCOrds                              Criminal Appeals Unit
                                            VIIAppeals/POSt Trial                                  First Judicial "District of PA
                  CP-51-CR-0013671·206~;~!~m     v. Mc Nair, Ameen.   OPINION

 Byrd, J.
                         I
                       II lllllllllll
                            7924895701
                                      1111111111
                                                                                                March 28, 2017



         On November 3, 2015, after a jury trial before this court, Ameen McNair was convicted of

     armed robbery, but found not guilty of conspiracy and possession of an instrument of crime. This

     court sentenced defendant to an aggregate term of ten (10) to twenty (20) years of state

     incarceration on January 8, 2016. Defendant filed a notice of appeal on May 17, 2016. This court
                                        \
     ordered defendant to file a statement of matters complained of on appeal on July 20, 2016. Said

     statement was filed on August 08, 2016


I.       STATE1\1ENT OF FACTS

         On November 5, 2014, at about 11:00 p.m., complainant Jason Collins was leaving the

     Sanitation Convenience Center, 51st and Grays Ferry Avenue, Philadelphia, following two back to

     back shifts. Mr. Collins walked along 5sth Street toward Girard Avenue, and as he crossed Girard

     Avenue, two black men approached him wearing hooded sweatshirts 'With their faces partially

     covered. N.T. 10/30/15, pp. 5, 19. These two men were later identified as defendant and his co-

     defendant Keon Davis. When he was approximately three (3) feet away from Mr. Collins, in an


     1
     area about fifteen (15) feet from an overhead street lamp, Davis drew a black revolver and said,

     "You know what it is." N.T. 10/30/15, pp. 6-7. Davis took Mr. Collins' Soul headphones.
                                                                  .       .
     Defendant took Mr. Collins' Samsung Galaxy phone with a Punisher cover. Defendant asked Mr.

     Collins to unlock his phone, to which Mr. Collins responded that he needed to use his thumb-print.

     N.T. 10/30/15, pp. 9. Davis directed Mr. Collins to sit on a set of steps in front of a nearby home

     and said, "I know you have something else." In response, Mr. Collins placed a lip balm and candy

      from his pocket on the steps. N.T. 10/30/15, pp.I I; 23-24. Davis told Mr. Collins to standup and

     walk away. In order to keep them in view, Mr. Collins side-stepped away from the men and called

     out to a neighbor for help. N.T. 10/30/2015, pp. 10-11. Defendant and Davis ran to a blue Crown

     Victoria, which was parked some twenty five (25) feet away with the engine running.               N.T.

      10/30/2015, pp. 11. The Crown Victoria drove west on Thompson Street from 55th Street, with
-...v~··-.


      Mr. Collins running after the vehicle until he was able to flag down a police officer driving by on

      routine patrol. N.T. 10/30/2015, pp. 11-12. The officer placed Mr. Collins into the police car and

      caught up with the Crown Victoria at 57th Street and Lancaster Avenue, approximately twelve (12)

      city blocks from the robbery location. N.T. 10/30/2015, pp. 12. Davis and defendant exited the

      back seat of the vehicle and Mr. Collins identified the two men as his assailants. N.T. 10/30/2015,

      pp. 12.



JI.          STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

                 Defendant raised the following issues in his Amended Statement of Matters Complained
                                                                                                  1:
      of on Appeal, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b)

                           I. Whether with the victim unable to identify defendant in court,
                               his alleged co-conspirator providing complete exoneration, and
                               the jury acquitting him of criminal conspiracy and possessing an

       I The   following is a verbatim statement of the issues.

      2
                         instrument of crime, the evidence was insufficient to convict
                         defendant of armed robbery
                      2. Whether the court considered all relevant factors prior to
                         imposing ten (10) to twenty (20) years in state prison
                      3. Whether the court's sentence was manifestly excessive
                      4. Whether this court's sentence often (10) to twenty (20) years in
                         state prison, which triggered an additional, five (5) to ten (10)
                         year violation of parole (VOP) sentence in Commonwealth v.
                         McNair, CP-51-CR-6577-2009, to run consecutive to the
                         sentence in this case, rose to the level of cruel and unusual
                         punishment



ID.        DISCUSSION


           Defendant's first contention, that the evidence was insufficient to support the guilty verdict, is

      clearly frivolous. In evaluating whether the evidence was sufficient to sustain a conviction, the

  ":".court is to" ...   view the evidence in the light most favorable to the Commonwealth as verdict

      winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the

      jury could properly have based its verdict, and determine whether such evidence and inferences

      are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Tate, 401 A.2d

      353 (1979). In applying this test, "The entire record must be evaluated and all evidence actually

      received must be considered."       Commonwealth v. DiStefano, 782 A.2d 574 (2001) (quoting

      Commonwealth v. Hennigan, 753 A.2d 245 (2000)). In Commonwealth v. Costa-Hernandez, 802

      A.2d 671 (2002), the court recognized that, "The question of any doubt regarding the facts and

      circumstances      established by the Commonwealth       is for the fact-finder to resolve unless the

      evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn

      from the combined circumstances." The appellate court may not weigh the evidence and substitute

      its judgment for the fact finder. Commonwealth v. Taylor, 831 A.2d 661 (2003).




       3
    In pertinent part, Title 18 Pa.C.S.A. § 3701 reads as follows:

               (a) Offense defined-
               (1) A person is guilty of robbery if, in the course of committing a
               theft, he:

               (ii) threatens another with or intentionally puts him in fear of
               immediate serious bodily injury

               (2) An act shall be deemed "in the course of committing a theft" if
               it occurs in an attempt to commit theft or in flight after the attempt
               or commission.
                                                   ( e.n bo.n c.)
Commonwealth v. Orr, 38 A.3d 868, 874 (201 lf, states, "[E]vidence of identification need not be

positive and certain to sustain a conviction ... Out-of-court identifications are relevant to our

review of sufficiency of the evidence claims, particularly when they are given without hesitation

shortly after the crime while memories were fresh ... Given additional evidentiary circumstances,

"any indefiniteness and uncertainty in the identification testimony goes to its weight." Orr, supra,

is instructive as the Commonwealth presented the following at trial in that case: (I) two men seized

the victim at gunpoint, shouting: "Don't move, old head. Don't move"; (2) the victim described

the taller man as approximately 5'9", in his twenties, with a red beard, light complexion, and

wearing a camouflage-patterned hooded jacket and gray pants; (3) the two men forcibly took

victim's wallet and jacket, containing victim's keys, cell phone, eyeglasses, and exactly twenty-six

dollars; (4) based on victim's description, police stopped [the] appellant within three to five blocks

of the crime scene and within twenty-five minutes of the crime, in a location consistent with the

direction in which victim saw the perpetrators flee after the robbery; (5) [the] appellant was

wearing a camouflage-patterned, hooded jacket and gray pants; (6) [the] appellant had a red beard

and a light complexion; (7) [the] appellant was taller than victim had estimated, but victim

confirmed at trial the perpetrator was definitely ''taller than the average guy"; 8) [the] appellant

was twenty-six years old on the date of the crime; (9) [the] appellant had exactly twenty-six dollars


4
on his person; and (10) Officer Flynn testified that, upon observing [the] appellant shortly after the

crime, victim exclaimed: "Yes. That's him. That's the guy. That's the guy that did it." The facts in

the instant case are quite similar to those in Orr, supra.

       With respect to the evidence identifying defendant as one of the two robbers, the prosecutor

had the following exchange with Mr. Collins at trial:

                   [District Attorney]: On the night that the car was stopped, did you make an

                identification to the officers?

                   [Mr. Collins]: Yes.

                  [District Attorney]: Do you recall -- I know you're saying you
               can't identify, but do you recall a physical description, anything
               beyond the skinnier guy?

                   [Mr. Collins]: A small beard. He definitely had a beard.

                  [District Attorney]: Is it fair to say, Mr. Collins, you didn't give
               them permission to take any of your items?                            ·

                   [Mr. Collins]: Yes.

                   [District Attorney]: Did you ever get any items back?

                   [Mr. Collins]: My white headphones.

                   [District Attorney]: Where were they?

                   [Mr. Collins]: At the police station.

                   [District Attorney]: How did you identify them as yours?

                    [Mr. Collins]: The officer identified them - he showed them to
                me at -- when they pulled the car, when they were pulling stuff out
                of the car.

                   [District Attorney]: The police pulled items out of the car while
                you were on the scene?

                   [Mr. Collins]: Yes.



5
                   [District Attorney]: You identified your items?

                  [Mr. Collins): Yes.

                   [District Attorney]: Which items were you able to identify?

                  [Mr. Collins]: Just the case from my headphones and my white
               headphones.

                  [District Attorney]: Do you recall on that night whether or not
               you -- did you go to Southwest detectives?

                  [Mr. Collins]: Yes.

                  [District Attorney]: Do you recall, on that night, whether or not
               you met with a Detective Maurizio?

                   [Mr. Collins]: Yes.

                   [District Attorney]: Did you give a statement to him?

                   [Mr. Collins]: Yes.

                  [District Attorney]: On that date, were you being truthful with
               him?

               [Mr. Collins]: Yes.

N.T. 10/30/15, pp. 14-15.

In addition, Police Officer Clifford Dooley testified that he stopped the blue Crown Victoria on

information from Jason Collins and found "Keon Davis seated on the back seat and Ameen McNair

was also seated in the back seat, and a female driver, Tina Freeman." N.T. 10/30/15, pp. 36. Officer

Dooley also testified that Mr. Collins "immediately identified the two males ... ," stating that Davis

was the gun man and defendant took his phone and headphones during the robbery. Indeed. the

officer observed in the vehicle's back seat "a black cell phone case with a big white Punisher face

on the back of it" and white headphones which the victim identified as property taken from him

during the robbery. N.T. 10/30/15, pp. 37-40.



6
          Next, defendant contends that co-defendant Keon Davis' testimony denying defendant's

involvement in the robbery renders the Commonwealth evidence insufficient to support the guilty

verdict in this case. However, it was the exclusive province of the jury to evaluate the testimony

offered by Davis and decide whether to believe some, all or none of it. Commonwealth v. Garvin,

293 A.2d 33 (1972); Commonwealth v. Williams, 299 A.2d 643 (1973). Here, the jury obviously

rejected Davis' testimony that he acted alone and that defendant was merely an innocent bystander,

and accepted the Commonwealth's version of the facts. Commonw~alth v. Smith, 326 A.2d 60

(1974).

          As stated above, defendant was stopped by police less than one (1) mile away from the

crime scene in the getaway vehicle containing the victim's stolen items. Further, Mr. Collins

positively identified defendant, both on the scene and later in a written statement at the police

station. Thus, the identification testimony coupled with the additional evidentiary circumstances,

was more than sufficient to prove defendant's guilt beyond a reasonable                doubt. See

Commonwealth v. Orr, supra.

          Defendant also contends that his acquittal on the charges of conspiracy and possession of

an instrument of crime requires that the robbery conviction be set aside. However, there is no

support in the law for that contention. Commonwealth v. Carter, 282 A.2d 375 (1971). Although

defendant did not possess the gun, he took Mr. Collin's cell phone and asked for the pass code

while Davis held the victim at gunpoint. Thus, defendant's actions constituted robbery, both as a

principal and as an accomplice. A defendant is an accomplice of another for a particular crime if

he had the intent of promoting or facilitating the commission of that crime and he solicits,

commands, encourages or requests the other person to commit it, or he aids, agrees to aid or

attempts to aid another person in planning or committing it. Commonwealth v. Wayne, 720 A.2d



7
456 (1998). Further, guilt or innocence ...      is not determined "by the quantum of advice or

encouragement." Commonwealth v. Leach, 317 A.2d 293 (1974).

       In each of his remaining three claims, defendant challenges the sentence for robbery

imposed by this court. First, defendant claims that the reasons for his sentence were not stated on

the record. On the contrary, the record clearly shows that this court considered all pertinent factors

before imposing sentence. See N.T. 01/08/16, pp. 4-7; Commonwealth v. Wagner, 702 A.2d 1084

(1997) (quoting Commonwealth v. Royer, 476 A.2d 453 (1984), which recognized that the trial

court has made a contemporaneous statement when it placed " 'on the record, at sentencing, in the

defendant's presence, the permissible range of sentences under the guidelines and, at least in

summary form, the factual basis, and specific reasons which compelled the court to deviate from

the sentencing range' "); Commonwealth v. Griffin, 804 A.2d 1 (2002) (explaining that "there is

no requirement that a sentencing court must evoke 'magic words' in a verbatim recitation of the

guidelines ranges to satisfy this requirement"). Prior to the sentencing hearing, this court reviewed

both the mental health evaluation and the pre-sentence investigation report. See N.T. 01/08/16,

pp. 5; Commonwealth v. Bums, 765 A.2d 1144 (2000) (confirming that the sentencing court "can

satisfy the requirement that reasons for imposing sentence be placed on the record by indicating

that he has been informed by the pre-sentencing report"); Commonwealth v. McClendon, 589 A.2d

 706 (1991) (noting that the sentencing court's discretion will not be disturbed if it has been
                                                                                     !




 informed by the pre-sentencing report). At the sentencing hearing, this court heard from both sides

 before imposing sentence. See N.T. 01/08/16, pp. 6-18. In fashioning defendant's sentence, this

 court considered the manner in which the crime was committed, its impact on the victim, society's

 need for protection, the sentencing guidelines, as well as defendant's age, mental aptitude,

 educational attainment, employment history, prior criminal record, and rehabilitative needs. See



 8
N.T. 01/08/16, pp. 19-20. Finally, there were no impermissible factors entertained by this court.
                                       311     p11,.Svpe!Y""·
See Conunonwealth v. Miller, 835 A.2dl'at 380 (2003) (informing that "a claim that a sentence is

excessive because the trial court relied on an impermissible factor also raises a substantial

question"). Thus, this court clearly provided the reasons for the sentence before it was imposed.

N.T. 01/08/16, pp. 18-19.

          Because due consideration was given to the sentencing guidelines, 2 the statutory maximum

for the robbery conviction, the facts of this case, defendant's individual circumstances, and

background, there is no support for defendant's contention that this court failed to consider all

legally permissible factors.         See Conunonwealth v. Eicher, 605 A.2d 337 (1992) (quoting

Commonwealth v. Clever, 576 A.2d 1108 (1990), which held that the appellate court "must accord

the sentencing court great weight as it is in the best position to view the defendant's character,

displays of remorse, defiance or indifference, and the overall effect and nature of the crime"). In

light of the foregoing, it follows that defendant's contention that the sentence imposed was

manifestly excessive is wholly unfounded.

          Finally, defendant avers that this court's sentence rose to the level of cruel and unusual

punishment because his conviction in this case triggered imposition of an additional period of


2
    The following exchange occurred between the court and counsel:
                      THE COURT: Before we proceed further, counsel, can the two of you
                   agree on the guideline computations?

                     [District Attorney): Yes.

                     THE COURT: State them, for the record.

                     [District Attorney]: We agreed that the offense gravity score is a ten,
                  defendant's prior record score is a five, bis guideline range is 60 to 72, plus
                  or minus 12. (Emphasis added.)

                      [Defense Counsel): Agreed.

N.T. 01/08/16, pp. 06-07.

9
incarceration for parole violation. In Commonwealth v. Knox, 50 A.3d 732 (2012), our Superior

Court stated, "A punishment is cruel and unusual only if it is so greatly disproportionate to an

offense as to offend evolving standards of decency or a balanced sense of justice." Commonwealth
                              ~~~·
v. Ehrsam, 512 A.2d 1199 (1986), appeal denied. Such is not the case here. As stated in
                                         .P~Sl.)\X.X,
Commonwealth v. Swope, 123 A.3d 333 (2015), defendant is not entitled to a volume discount for

his crimes.

      Accordingly, in light of the foregoing, the judgment of sentence should be AFFIRMED.




 10
