J-S23003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
LAMAR PERSON,                              :
                                           :
                   Appellant               : No. 2059 EDA 2013

             Appeal from the Judgment of Sentence April 5, 2013,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0004862-2012

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 14, 2015

       Lamar Person (“Person”) appeals from the judgment of sentence

entered on April 5, 2013 by the Court of Common Pleas of Philadelphia

County, Criminal Division, following his convictions of robbery, conspiracy,

and recklessly endangering another person (“REAP”).1 We affirm.

       The trial court summarized the relevant facts of this case as follows:

             The incident giving rise to the charges in this case
             occurred on February 12, 2012, at a delicatessen
             located at 816 North 12th Street in the City of
             Philadelphia (12th Street Deli) involving the victim,
             Michael White (White). On that day at or around
             8:45 p.m., White was walking down 12th Street
             when he noticed a gold Nissan Maxima slowing down
             with four men in it. White became suspicious that
             something was wrong because the car was slowing
             down and the men were staring at him. Upon which,
             White went into the 12th Street Deli, thinking that he
             would be safe therein. However, two men from the


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 2705.


*Retired Senior Judge assigned to the Superior Court.
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           Nissan followed him into the 12th Street Deli,
           [Person] and his co-conspirator, Ronald Flamer
           (Flamer). Flamer walked in first and asked White
           what time it was. White turned his head and saw
           [Person] enter the Deli. Whereupon, Flamer told
           White to empty his pockets. Flamer proceeded to go
           through White’s pockets and found a five dollar bill;
           a pack of Newport cigarettes; and a cell phone.
           Flamer took these items from White. However, the
           co-conspirators wanted more valuables to take.
           Thereupon, Flamer told [Person] to pull out his
           ratchet, meaning a “gun.” White believed that he
           saw [Person] pull out a gun from his pocket. But
           that was all that White had so the co-conspirators
           left the 12th Street Deli and got back into the Nissan
           and drove away. White went immediately home.
           When he got home, White’s mother called the police.

           When the police arrived, White told Philadelphia
           Police Officer Joseph Gillespie (Officer Gillespie) what
           had happened. Officer Gillespie put out a police flash
           with descriptions looking for the suspects. At about
           that time[,] the co-conspirators were stopped for a
           traffic violation by Philadelphia Police Officer Robert
           Wuuller (Officer Wuuller) at Broad and Dauphin
           Streets because of no passenger side mirror. Officer
           Wuuller then got the police flash from headquarters
           about the gold Nissan Maxima[,] which matched the
           description of [Person] and Flamer. Officer Gillespie
           brought White to the car stop of [Person] and Flamer
           at Broad and Dauphin Streets. At the scene, White
           identified [Person] and Flamer as the perpetrators of
           the Robbery.

Trial Court Opinion, 11/25/13, at 2-3.

     On January 18, 2013, a jury found Person guilty of robbery (F1),

conspiracy (F1), and REAP.     On April 5, 2013, this trial court sentenced

Person to consecutive sentences of five to ten years of incarceration on the

robbery charge; five to ten years of incarceration on the conspiracy charge;



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and no further penalty on the REAP charge, for an aggregate sentence of ten

to twenty years of incarceration.

       On April 11, 2013, Person filed a post-sentence motion alleging

prosecutorial misconduct and that the verdict was against the weight of the

evidence, which the trial court denied on July 18, 2013. On July 22, 2013,

Person filed a timely notice of appeal.

       On appeal, Person raises the following issues for our review and

determination:

             1. During the Commonwealth’s closing argument,
             the prosecutor explicitly asked the jurors to put
             themselves in the shoes of the victim and principal
             witness Michael White.

             2. The trial court erred when it failed or refused to
             charge the jury on the lesser included offenses or
             concluded that it did not have the authority to or
             refused to find [Person] guilty of any lesser included
             offense.

             3. Whether the verdict was based on insufficient
             evidence?

             4. The verdict regarding F-1 robbery was against the
             weight of the evidence.

Person’s Brief at 11.2

       For his first issue on appeal, Person argues that the trial court erred in

not granting him a new trial due to prosecutorial misconduct that allegedly

took place during closing arguments.        Person’s Brief 15-24.     Specifically,



2
    We reordered the issues Person raises on appeal for ease of review.


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Person takes issue with the following portion of the prosecution’s closing

argument:

            You can give [White] justice with one word. Guilty.
            I’m asking you to go to this room and I’m asking you
            to imagine how this kid felt inside that deli with
            nobody but the clerk behind that window who was of
            no help and two guys covering him and one guy
            holding a gun while the other one was doing this to
            him. I want you to think about this when you go to
            this room to deliberate. And when you come back it
            will be your turn to speak the truth and I’ll ask you
            to find both of these defendant[s] guilty of gunpoint
            robbery of this kid [White]. Thank you.

N.T., 1/17/13, at 161.    Person contends that by asking the jury to place

themselves into the shoes of the victim, the prosecution wrongly attempted

to influence the jury by arousing their prejudices. Person’s Brief at 15.

      We conclude that Person has waived this claim for failing to make a

timely objection to the prosecutor’s remarks.

            This Court has held that the lack of a
            contemporaneous objection constitutes a waiver of
            any challenge to the prosecutor’s closing remarks.
            Commonwealth v. Powell, [] 956 A.2d 406, 423
            ([Pa.] 2008) (providing that the “absence of a
            contemporaneous objection below constitutes a
            waiver of appellant’s current claim respecting the
            prosecutor’s closing argument”); Commonwealth v.
            Butts, [] 434 A.2d 1216, 1219 ([Pa.] 1981)
            (providing that the failure to object during or after
            summation constitutes a waiver of prosecutorial
            misconduct claim).

Commonwealth v. Rivera, [] 983 A.2d 1211, 1229 ([Pa.] 2009) (citation

omitted). Here, Person did not object to the above-referenced remarks at




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trial and did not raise the issue until his post-sentence motion. See N.T.,

1/17/13, at 161; Post-Sentence Motion, 4/11/13, at 4-7.             Accordingly,

Person has waived this issue.

      For his second issue on appeal, Person argues that the trial court erred

in denying his request to charge the jury on robbery graded as a second-

and third-degree felony. Person’s Brief at 25-30. The record reveals that

Person did not object to the trial court’s failure to include this point at the

time it charged the jury.   N.T., 1/17/13, at 112-13, 183-84. Accordingly,

Person has waived the issue.     See Commonwealth v. Sanchez, 82 A.3d

943, 978 (Pa. 2013) (holding that even where trial court denies request for

specific charge at charging conference, party must make a specific objection

to its omission when charge is given to preserve the issue for appeal).

      Even if Person had not waived this issue, it would not prevail. 3 Person

argues that he was entitled to a charge on robbery as a second- and third-

degree felony because they are lesser-included offenses of first-degree

felony robbery for which the record contained evidentiary support. Person’s

Brief at 25-28.4    This argument is premised on Person’s assertion that


3
   “In deciding whether a trial court erred in refusing to give a jury
instruction, we must determine whether the court abused its discretion or
committed an error of law.” Commonwealth v. Clouser, 998 A.2d 656,
658 (Pa. Super. 2010).
4
  We note that the relevant distinction here is that first-degree felony
robbery requires a finding that the actor threaten or instill the fear of serious
bodily injury, second-degree felony robbery requires only the intent to cause
or instill fear of bodily injury, and third-degree felony robbery occurs where


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because White did not positively identify the object in Person’s hand as a

gun, the jury could reasonably conclude that they did not possess a gun and

therefore did not threaten or intend to put White in fear of serious bodily

harm, as is required for a conviction of robbery as a first-degree felony. See

id.   We rejected precisely the same argument in Commonwealth v.

Thomas, 546 A.2d 116 (Pa. Super. 1988).           In that case, the defendant

robbed a fast food restaurant. In the course of doing so, he held a pointed

object under his shirt.   As the defendant was collecting money from the

registers, it was revealed that the object under his shirt was a door lock. He

was convicted of robbery graded as a first-degree felony.            In a PCRA

petition, the defendant argued that his trial counsel was ineffective for failing

to request a charge to the jury on robbery as a second-degree felony

because it is a lesser-included offense. After considering the definitions of

these crimes, we agreed with the defendant that second-degree robbery is a

lesser-included offense of first-degree robbery, but we rejected his claim

that this alone entitled him to a charge on the offense:

            However, [the defendant] is not automatically
            entitled to have the jury instructed on second[-]
            degree robbery simply because that charge
            constitutes a lesser included offense of the first
            degree robbery charge. A defendant is entitled to
            such an instruction only where the evidence in the
            record would permit the jury to find, rationally, the


the defendant “physically takes or removes property from the person of
another by force however slight.” See 18 Pa.C.S.A. § 3701(a)(1)(ii), (iv),
(v).


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          defendant guilty of the lesser included offense but
          not the greater offense. Commonwealth v. Wood,
          475 A.2d 834 ([Pa. Super.] 1984); Commonwealth
          v. Sirianni, 428 A.2d [629,] 633 [(Pa. Super.
          1981)].

          [The defendant] asserts that he was entitled to such
          an instruction because the evidence supported a
          finding that appellant threatened the McDonald’s
          employees with “immediate bodily injury” but not
          with “immediate serious bodily injury.” According to
          [the defendant], since [he] carried only a lock, which
          cannot cause serious bodily injury, the victims were
          never placed in fear of serious bodily injury. … .

          [The defendant’s] focus on the true nature of the
          hidden object and on the state of mind of the victims
          is misplaced. Rather, the proper focus under the
          statute in determining the type of bodily harm
          threatened is on the defendant’s intent and actions.
          Commonwealth v. Morton, 512 A.2d 1273 ([Pa.
          Super.] 1986); Commonwealth v. Mays, 375 A.2d
          116 ([Pa. Super.] 1977).           In simulating the
          possession of a gun, [the defendant] was clearly
          aiming to instill in his victims the highest degree of
          fear. Faced with a deadly weapon, a victim fears,
          not just that he or she may be injured during the
          robbery, but that his or her very life is in danger.
          [The defendant] did not simply intend that the
          victims’ fear of some bodily injury would prevent
          resistance; rather, he relied on the threat of a deadly
          weapon to insure compliance.

          [The defendant’s] crime is not made less serious by
          the fact that he did not possess a gun, but was only
          simulating one. Commonwealth v. Hurd, [] 407
          A.2d 418, 420 ([Pa. Super.] 1979) (defendant
          placing hand in pocket and pointing at victim shows
          that defendant intended to put victim in fear of
          serious bodily harm). Neither is the harm intended
          reduced to mere bodily harm simply because the
          victims realized before [the defendant] escaped (but
          after [he] began taking the money), that [he] did



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          not possess a gun. The proper question is whether
          the threat intended or posed by [the defendant] was
          calculated to inflict fear of serious bodily injury.
          Commonwealth v. Mays, [] 375 A.2d at 118. The
          threat posed by the appearance of a gun is
          calculated to inflict fear of deadly, not just mere
          bodily, injury. This threat enabled [the defendant]
          to proceed with the theft. … Moreover, the statute
          instructs that in determining the grade of the felony
          we focus on the intent or act of the defendant and
          not the subjective state of mind of the victim. [The
          defendant] would not have been exonerated of the
          first[-]degree felony even if his victims refused to
          take his threat seriously. Hurd, 407 A.2d at 420;
          Mays, 375 A.2d at 118.

          The statute itself, by dividing the degrees of robbery
          into gradations of possible violence, demands that
          the jury make a decision as to the degree of violence
          that the defendant intended or used in the
          commission of the crime. In distinguishing between
          bodily injury and serious bodily injury, the legislature
          recognized that the amount of force used or
          threatened on a person during a robbery deserved
          separate     treatment    and    penalty,    with    the
          punishment proportionate to the amount of violence
          threatened or used. Commonwealth v. Brown, []
          484 A.2d 738, 741 ([Pa.] 1984). It would be both
          irrational and contrary to the aims of the statute for
          the jury to be permitted to find [the defendant], who
          calculated that his victims would be in mortal fear of
          a deadly weapon, guilty only of the lesser offense of
          threatening mere bodily injury, but not guilty of
          threatening serious bodily injury. [The defendant]
          was therefore not entitled to have the jury instructed
          on the charge of second[-]degree robbery. See []
          Sirianni, [] 428 A.2d at 633 (where firearm
          involved, it would not have been reasonable for the
          jury to infer the intent to cause mere bodily injury
          from the fact that no serious bodily injury was
          caused; defendant not entitled to jury instruction on
          lesser    included   offense    of   simple    assault).




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            Instructions should invite the jury to arrive at a
            rational, not an irrational, conclusion.

Thomas, 546 A.2d at 118-19.

      Similar to the situation in Thomas, Person’s argument for the second-

and third-degree robbery instruction was premised on his assertion that the

evidence would allow a finding that he did not actually possess a gun.

However, as recounted above, whether he actually possessed a gun is not

the salient inquiry; we focus, instead, on whether the actor intended to instill

fear of serious bodily injury. Even if Person and Flamer did not possess a

gun, it is undisputed that they simulated possession of a gun. Thus, as in

Thomas, we conclude that the “threat intended or posed by [Person] was

calculated to inflict fear of serious bodily injury,” and the jury could not have

rationally concluded otherwise.    Accordingly, we find no error in the trial

court’s refusal to give the requested charge.

      For his third issue on appeal, Person challenges the sufficiency of the

evidence for his robbery as a first-degree felony conviction.5 Person’s Brief

at 33-35.   When reviewing sufficiency of the evidence claims, “we must


5
   We note that although the statement of the questions involved section of
Person’s appellate brief and the heading to this issue in the argument
section of his brief claim that his entire verdict was based on insufficient
evidence, Person presents argument only as to his robbery conviction. See
Person’s Brief at 11, 33-35. Therefore, Person has waived any challenge to
his other convictions with respect to the sufficiency of the evidence. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”).


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determine whether the evidence admitted at trial, as well as all reasonable

inferences drawn therefrom, when viewed in the light most favorable to the

verdict winner, are sufficient to support all elements of the offense.”

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (quoting

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)).           When

performing this review, “we may not reweigh the evidence or substitute our

own judgment for that of the fact finder.” Id.

     Person argues that the evidence was insufficient to support his

conviction of robbery as a first-degree felony.      Section 3701(a) defines

robbery as follows:

           (a) Offense defined.--

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

              (i) inflicts serious bodily injury upon another;

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

              (iii) commits or threatens immediately to
              commit any felony of the first or second
              degree;

              (iv) inflicts bodily injury upon another or
              threatens another with or intentionally puts
              him in fear of immediate bodily injury;

              (v) physically takes or removes property from
              the person of another by force however slight;
              or




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              (vi) takes or removes the money of a financial
              institution without the permission of the
              financial institution by making a demand of an
              employee of the financial institution orally or in
              writing with the intent to deprive the financial
              institution thereof.

                                   ***

           (b) Grading.--

              (1) Except as provided under paragraph (2),
              robbery under subsection (a)(1)(iv) and (vi) is
              a felony of the second degree; robbery under
              subsection (a)(1)(v) is a felony of the third
              degree; otherwise, it is a felony of the first
              degree.

18 Pa.C.S.A. § 3701(a)(1),(b).

     Person was convicted under subsection (a)(1)(ii), which requires that

in the course of committing the theft, the actor “threatens another with or

intentionally puts him in fear of immediate serious bodily injury[.]”

18 Pa.C.S.A. § 3701(a)(1)(ii).6 Presently, Person argues that the evidence

was insufficient to support a finding that Person and/or Flamer possessed a

gun and therefore threatened, or intentionally placed White in fear of,

immediate bodily injury.     See Person’s Brief at 35.         Person argues

essentially that because White could not state unequivocally that Person




6
   “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.A. § 2301.


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possessed a gun, the evidence was insufficient to establish commission of

robbery under section 3701(a)(1)(ii). See id. We disagree.

      The   evidence,    viewed      in     the    light   most   favorable   to   the

Commonwealth, establishes that Person and Flamer surrounded White while

he was sitting down. N.T., 1/16/13, at 50. They stood so close to White

that he could not stand up or move.               Id.   Flamer demanded that White

empty his pockets.      Id. at 51.        White responded that he did not have

anything and held out the five dollars that he had on his person. Id. at 52.

Flamer then went through the pockets on White’s coat and pants and

discovered only a cellular phone and a partial pack of Newport 100

cigarettes. Id. In an aggravated tone of voice, Flamer then told Person to

“pull out the ratchet.” Id. at 53. White understood “ratchet” to mean gun.

Id. at 54. At that time, Person pulled out something that he had concealed

on his hip, but kept it close against his waist. Id. at 53, 55. White glanced

at the object and saw what looked like the barrel of a gun.7 Id. at 56. With

the object exposed, Flamer asked the victim if he had anything else. White

responded in the negative, and Flamer went through his pockets once more

before leaving the store with Person, as well as with White’s phone,

cigarettes and money.      Id. at 57.        White testified that he was nervous




7
   White testified that he did not keep looking at the object, opting instead to
“look in their eyes to kind of go with their body language to see what was
going to happen next.” N.T., 1/16/13, at 56.


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during the encounter because “he wasn’t sure what was going to happen.”

Id. at 68.

      This evidence establishes that Person and Flamer physically restricted

White and brandished a gun while demanding that White give them his

possessions.   We conclude that in this case, the displaying of a gun while

issuing demands is sufficient to establish that Person threatened or

intentionally placed the victim in fear of immediate serious bodily injury.

See 18 Pa.C.S.A. § 3701(a)(1)(ii).

      For his final issue on appeal, Person argues that his verdict with

respect to his robbery as a first-degree felony conviction was against the

weight of the evidence.     Person’s Brief at 31-32.   Our standard of review

when presented with a weight of the evidence claim is different from that

applied by a trial court:

             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 verdict was or was not against
             the weight of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).

Therefore, “an appellate court reviews the exercise of the trial court’s



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discretion; it does not answer for itself whether the verdict was against the

weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135-

36 (Pa. 2011). Importantly, “a new trial based on a weight of the evidence

claim is only warranted where the jury’s verdict is so contrary to the

evidence that it shocks one’s sense of justice.” Id.

      We conclude that the trial court did not abuse its discretion in

determining that Person’s robbery verdict was not against the weight of the

evidence. In arguing to the contrary, Person places much emphasis on the

fact that White, who was the Commonwealth’s primary witness, was

previously convicted of a crime of dishonesty and therefore, in Person’s

view, not a reliable witness. Person’s Brief at 31. Credibility determinations

are for the jury to make “and review of the jury’s credibility determinations

is not for the trial court to undertake.” Commonwealth v. Gonzalez, 109

A.3d 711, 724 (Pa. Super. 2015).       Here, the jury weighed the evidence

presented, evaluated White’s testimony, and evidently found him credible,

as it was entitled to do.

      Moreover, as we established above, the certified record reflects that

Person and Flamer physically restricted White and that White believed

Flamer told Person to get out a gun while demanding that White give them

his possessions. See N.T., 1/16/13, at 50-53, 55-57. The trial court did not

abuse its discretion in determining that the jury verdict here was not so




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contrary to the evidence that it shocks one’s sense of justice. Accordingly,

Person’s weight of the evidence claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/14/2015




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