J-S80042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH PUGH                                 :
                                               :
                       Appellant               :   No. 3624 EDA 2017

            Appeal from the Judgment of Sentence October 23, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014211-2014


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                                 FILED JULY 1, 2019

        Appellant Keith Pugh appeals from the judgment of sentence entered

after a jury found him guilty of robbery—threat of serious bodily injury.1

Appellant challenges the sufficiency and weight of the evidence. Appellant

also contends that the trial court’s instruction on robbery was deficient, and

that trial counsel was ineffective for failing to object to the instruction. We

affirm.

        The trial court summarized the evidence presented at trial as follows:

        On August 30, 2014, near Broad and Hunting Park in Philadelphia,
        at approximately 2:15 AM[,] . . . Complainant, Robert Mason, had
        been biking to his girlfriend’s home when he noticed [Appellant]
        had a stick resembling a cigarette in his mouth. . . . Complainant
        approached [Appellant] to ask for a cigarette, but [Appellant] did
        not have any cigarettes. [Appellant] proceeded to purchase

____________________________________________


1   18 Pa.C.S. § 3701(a)(1)(ii).
J-S80042-18


     cigarettes for Complainant from a Chinese restaurant, Golden
     City, and then the two returned to [Appellant]’s car.

     During the walk back to [Appellant]’s car, the two conversed about
     cellphones and discussed the possibility of Complainant selling
     [Appellant] his cellphone. [Appellant] proceeded to charge the
     cellphone in his car to make sure it was in working condition. After
     [Appellant] was assured the cellphone was in working condition,
     he returned the phone to Complainant. [According to
     Complainant, t]he two continued conversing, after which,
     [Appellant] surprised Complainant when he removed a firearm
     from his person and pointed it at . . . Complainant. [Appellant]
     then proceeded to demand . . . Complainant’s cellphone and his
     wallet, which contained approximately $30 in cash. Complainant
     emptied his pockets and handed over his wallet and cellphone to
     [Appellant]. [Appellant] drove away to Hunting Park Avenue and
     went around a triangle of streets in that area.

     Since [Appellant] was still within a short distance of Complainant,
     . . . Complainant was able to see [Appellant] momentarily stopped
     and arguing with some other people. . . . Complainant approached
     [Appellant] and requested that his belongings be returned to him.
     [According to Complainant, Appellant] responded by pointing the
     same firearm he had pointed at Complainant earlier at . . .
     Complainant again and demanded . . . Complainant leave. . . .
     Complainant backed away and tried to identify [Appellant’s]
     license plate, [and] he was able to identify the first three letter,
     “J-R-A.”

     Within seconds of walking away, . . . Complainant heard multiple
     gunshots and [Appellant] sped away in his car.

     There were two police officers, Officer White and Officer Hines, in
     a vehicle near the area where the gunshots were fired. As soon as
     they heard the gunshots, they sped in the direction in which they
     heard them fired. As they arrived to Hunting Park Avenue, at the
     4200 block of Carlisle Street, . . . Complainant flagged down the
     officers and pointed in the direction [Appellant] had driven off. The
     police officers immediately gave chase to [Appellant]’s vehicle and
     were able to ascertain the last four digits of the license plate.

     The police officers successfully got [Appellant] to pull over his
     vehicle, but as the officers exited their vehicle to approach
     [Appellant], [Appellant] drove off and made a right turn onto
     Broad Street. The police officers returned to their vehicle and gave
     chase for a second time. At some point while driving down Broad

                                     -2-
J-S80042-18


        Street, the police officers lost sight of [Appellant]. He was
        subsequently arrested pursuant to an arrest warrant.[2]

Trial Ct. Op., 3/5/18, at 2-3 (record citations omitted).

        Appellant, who was represented by James T. Marsh, Esq. (trial counsel),

proceeded to a jury trial, which resulted in a mistrial on June 7, 2017. On

August 17, 2017, following a second trial, a jury found him guilty of robbery—

threat of serious bodily injury, but acquitted him of two violations of the

Uniform Firearms Act and possessing an instrument of crime (the acquittals).3

Appellant filed a post-trial motion challenging the weight and sufficiency of the

evidence based on the acquittals.

        On October 23, 2017, the trial court denied the post-trial motion and

sentenced Appellant to ten to twenty years’ imprisonment. Appellant did not

file a post-sentence motion. Appellant filed both a pro se and a counseled

notice of appeal.4


____________________________________________


2 Appellant gave a statement to police on October 8, 2014, acknowledging
that he and Complainant discussed the sale of a cellphone on August 30, 2014.
N.T., 8/16/17, at 121-122. Appellant stated that he drove away from the
scene because he believed Complainant was trying to rob him. Id. at 123.
According to Appellant, he heard gunshots as he was driving away from the
scene. Id. at 123. Appellant denied Complainant’s allegation that Appellant
threatened him with a firearm. Id. at 125, 127. Appellant, however,
conceded he had Complainant’s cellphone when he left the scene. Id. at 122,
124.

3   18 Pa.C.S. §§ 6106(a)(1), 6108, and 907, respectively.

4Appellant’s pro se notice of appeal was docketed at 3486 EDA 2017. This
Court entered an order memorializing the discontinuance of Appellant’s pro se
appeal on December 14, 2017.

                                           -3-
J-S80042-18



      On October 31, 2017, the trial court permitted Appellant’s trial counsel

to withdraw and directed that new counsel be appointed for appeal.           On

November 21, 2017, the trial court ordered that a Pa.R.A.P. 1925(b)

statement be filed and served when new counsel actually received all notes of

testimony. Present counsel, Lauren A. Wimmer, Esq., filed a Rule 1925(b)

statement on February 1, 2018. The trial court filed a responsive opinion.

      Appellant presents three issues on appeal, which we have reordered as

follows:

      [1]. The evidence is insufficient to sustain the verdict of guilt
      because the Commonwealth failed to prove beyond a reasonable
      doubt that . . . Appellant inflicted serious bodily injury on
      [C]omplainant; threatened [C]omplainant with serious bodily
      injury; or intentionally put [C]omplainant in fear of immediate
      serious bodily injury in the course of committing a theft.

      [2]. The verdict is against the weight of the evidence. The jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice because the Commonwealth failed to prove the elements
      of robbery, graded as a felony of the first degree, beyond a
      reasonable doubt.

      [3]. The trial court erred in failing to charge the jury on the
      definition of “theft” and/or “in the course of committing a theft”
      as it applies to the robbery statute.

Appellant’s Brief at 6.

      Appellant first contends that the evidence was insufficient to sustain his

conviction for robbery. Id. at 14. According to Appellant, the inconsistency

between the jury’s findings that he did not possess a firearm but committed a

robbery by threatening serious bodily injury cannot be reconciled. Id. at 21-

22. Appellant claims that absent the presence of a firearm, the evidence that


                                     -4-
J-S80042-18



Appellant demanded Complainant’s wallet and phone was insufficient to prove

a threat of serious bodily injury. Id.

      The principles governing our review of this issue are well-settled.

      The standard of review for sufficiency claims requires that an
      appellate court determine “whether the evidence admitted at trial
      and all reasonable inferences drawn therefrom, when viewed in
      the light most favorable to the Commonwealth as the verdict
      winner, is sufficient to support all the elements of the offenses.”
      As a reviewing court, we may not “weigh the evidence and
      substitute our judgment for the fact-finder’s.” Additionally, “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.”

Commonwealth v. Kubis, 978 A.2d 391, 397 (Pa. Super. 2009) (citations

omitted).

      Generally, inconsistent verdicts “are allowed to stand so long as the

evidence is sufficient to support the conviction.” Commonwealth v. Miller,

35 A.3d 1206, 1208 (Pa. 2012) (citations omitted).         A court should not

speculate on whether the verdicts were a “result of mistake, compromise,

lenity, or any other factor.” Id. at 1213. Moreover, “an acquittal cannot be

interpreted as a specific finding in relation to some of the evidence, and . . .

even where two verdicts are logically inconsistent, such inconsistency alone

cannot be grounds for a new trial or for reversal.” Id.

      Pennsylvania recognizes a narrow exception when considering an

inconsistent verdict. In Commonwealth v. Magliocco, 883 A.2d 479, 492

(Pa. 2005), for example, the defendant was charged, tried, and convicted of

                                     -5-
J-S80042-18



ethnic intimidation, but acquitted of terroristic threats. Magliocco, 883 A.2d

at 481. The Magliocco Court noted that the ethnic intimidation required a

conviction of the predicate offense and that the Commonwealth separately

charged and prosecuted the defendant of terroristic threats.5           Id. at 492.

Under those limited circumstances, the Pennsylvania Supreme Court

concluded that the specific finding that the defendant did not commit the

predicate offense of terroristic threats precluded a conviction for ethnic

intimidation. Magliocco, 883 A.2d at 492-93.

        Section 3701(a)(1)(ii) of the Crimes Code defines robbery—threat of

serious bodily injury as follows: “A person is guilty of robbery if, in the course

of committing a theft, he: . . . threatens another with or intentionally puts him

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

Court has held that

        [t]he Commonwealth need not prove a verbal utterance or threat
        to sustain a conviction under Section 3701(a)(1)(ii). It is sufficient
        if the evidence demonstrates aggressive actions that threatened
        the victim’s safety. For the purposes of Section 3701(a)(1)(ii), the
____________________________________________


5   The ethnic intimidation statute provided:

        a person is guilty of ethnic intimidation “if, with malicious intention
        toward the race . . . of another individual or group of individuals,
        he commits an offense under any other provision of this article or
        under Chapter 33 . . . or under section 3503 . . . or under section
        5504 . . . with respect to such individual . . . or with respect to
        one or more members of such a group.” 18 Pa.C.S. § 2710(a).


Magliocco, 883 A.2d at 489 (footnote omitted). In Magliocco, it was
undisputed that the only applicable predicate offense at issue was terroristic
threats. Id.

                                           -6-
J-S80042-18


      proper focus is on the nature of the threat posed by an assailant
      and whether he reasonably placed a victim in fear of “immediate
      serious bodily injury.” Thus, a reviewing court will consider the
      defendant’s intent and actions and not necessarily the subjective
      state of mind of the victim.

Commonwealth v. Ouch, 199 A.3d 918, 924 (Pa. Super. 2018) (citations

omitted).

      In Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super. 2016), this

Court expressly rejected an argument that a conviction under Section

3701(a)(1)(ii) required the possession, or brandishing, of a weapon.       See

Bragg, 133 A.2d at 332 (concluding that the defendant’s aggressive actions

placed employees and customers of a bank in fear of serious bodily injury,

despite the fact that the defendant did not brandish a weapon or utter a

specific verbal threat). Therefore, possession of a weapon is not an element

of robbery—threat of serious bodily injury. See id.

      Following our review, we discern no merit to Appellant’s sufficiency

challenge. As noted by the trial court, the acquittals cannot be construed as

a specific finding that Appellant did not possess a firearm or some type of

weapon.     See Trial Ct. Op. at 6.; Miller, 35 A.3d at 1213.      Furthermore,

Appellant’s conviction for robbery—threat of serious bodily injury does not fall

under the narrow exception set forth in Magliocco. See Magliocco, 883

A.2d at 492-93; accord Bragg, 133 A.2d at 332. Having reviewed the record

in light of our standard of review, we discern no basis to disturb the jury’s

finding that Appellant threatened Complainant with serious bodily injury

during the course of a theft. Therefore, Appellant’s first issue fails.

                                      -7-
J-S80042-18



      Appellant next contends that the verdict was against the weight of the

evidence. Appellant asserts that “there is no logical explanation for the jury’s

verdict of guilty for robbery and acquittal of the weapons offense[s]. Without

the firearm, Appellant simply could not have placed [Complainant] in fear of

serious bodily injury.”   Appellant’s Brief at 22.    Appellant adds that the

evidence showed that Complainant was not in fear of serious bodily injury.

Id.    In support, Appellant notes that shortly         after Appellant took

Complainant’s belongings and attempted to leave the scene, Complainant

confronted Appellant and asked him to return his belongings. Id.

      Generally,

         [a]ppellate 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
         and that a new trial should be granted in the interest of
         justice.

      In order for a defendant to prevail on a challenge to the weight of
      the evidence, “the evidence must be so tenuous, vague and
      uncertain that the verdict shocks the conscience of the court.”

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(citations omitted).




                                     -8-
J-S80042-18



      Instantly, Appellant preserved his challenge to the weight of the

evidence in a post-trial motion, see Pa.R.Crim.P. 607(A)(2), which the trial

court denied. The court, in its Rule 1925(a) opinion, reasoned that that “the

jury weighed the evidence presented, evaluated Complainant’s testimony, and

evidently found him credible as it was entitled to do.” Trial Ct. Op. at 9.

      We conclude the trial court appropriately deferred to the jury’s findings

that Appellant threatened Complainant with or intentionally put him in fear of

immediate serious bodily injury. The court properly refused to speculate on

the reasons for the acquittals. See Miller, 35 A.3d at 1208. Contrary to

Appellant’s argument, the court was not required to interpret the acquittals as

a specific finding that Appellant did not possess a firearm or place special

weight on the acquittals. See id. Lastly, the fact that Complainant confronted

Appellant after the robbery does not negate the jury’s finding that Appellant

threatened Complainant with        serious bodily   injury   during   the   theft.

Accordingly, we find no abuse of discretion in the trial court’s decision to deny

Appellant’s request for a new trial. See Talbert, 129 A.3d at 545-46.

      Lastly, Appellant contends that the trial court’s jury instruction on

robbery was deficient because the court did not define a “theft.” Appellant’s

Brief at 16. Appellant concedes that trial counsel did not object to the court’s

jury instruction, and this claim could be deemed waived. Id.

      Nevertheless, Appellant requests that this Court review his issue as a

matter of ineffective assistance of counsel. Id. at 16-17. Appellant suggests

that an immediate consideration of his ineffectiveness claim would best serve

                                      -9-
J-S80042-18



the interests of justice. Id. at 17. Appellant relies on Commonwealth v.

Humpheys, 532 A.2d 836 (Pa. Super. 1987), and Commonwealth v.

Robinson, 425 A.2d 748 (Pa. Super. 1980), to assert that the trial court’s

instruction on robbery was clearly defective. Appellant further suggests that

trial counsel had no basis for failing to object, and the defective instruction

resulted in prejudice. Id. at 17-18.

        It is well settled that

        [a] specific and timely objection must be made to preserve a
        challenge to a particular jury instruction. Failure to do so results
        in waiver. Generally, a defendant waives subsequent challenges
        to the propriety of the jury charge on appeal if he responds in the
        negative when the court asks whether additions or corrections to
        a jury charge are necessary.

Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations

omitted); see also Pa.R.A.P. 302.

        With respect to a claim of ineffective assistance of counsel, this Court

has noted:

        Generally, a claim that trial counsel is ineffective is deferred to
        collateral review under the Post Conviction Relief Act. [6]
        Commonwealth v. Holmes, . . . 79 A.3d 562, 563-64 ([Pa.]
        2013). This general rule has exceptions that allow for review of an
        ineffectiveness claim on direct review: (1) the ineffectiveness is
        apparent from the record and meritorious to the extent that
        immediate consideration best serves the interests of justice; (2)
        the defendant has shown good cause and knowingly and expressly
        waives his entitlement to seek subsequent PCRA review from the
        conviction and sentence; and (3) the defendant is statutorily
        precluded from obtaining PCRA relief, such as where the court
        sentenced the defendant to paying a fine only. Id.;
____________________________________________


6   42 Pa.C.S. §§ 9541-9546.

                                          - 10 -
J-S80042-18


      Commonwealth v. Delgros, . . . 183 A.3d 352, 361 ([Pa.]
      2018). Although the trial court retains discretion to address
      ineffectiveness    claims on   post-sentence    motions,   “the
      presumption weighs heavily in favor of deferring such claims to
      collateral review.” Commonwealth v. Knox, 165 A.3d 925, 928
      (Pa. Super. 2017).

Commonwealth v. Green, 204 A.3d 469, 486-87 (Pa. Super. 2019).

Notably, the exceptions set forth in Holmes focus on the trial court’s exercise

of discretion. See Holmes, 79 A.3d at 563.

      Instantly, there is no dispute that trial counsel did not request an

instruction regarding theft or object to the trial court’s jury instruction on

robbery. See N.T., 8/17/17, at 16, 23. Therefore, Appellant’s challenge to

the court’s instruction has been waived. See Pa.R.A.P. 302; Moury, 992 A.2d

at 178.

      To the extent Appellant attempts to raise a claim of ineffective

assistance of counsel, we conclude that such a claim is also waived.

Appellant did not present a claim of ineffective assistance of counsel in a

motion before the trial court. Instead, he raised the claim for the first time in

his Rule 1925(b) statement.        Therefore, Appellant did not provide an

opportunity for the trial court to consider this issue. See Pa.R.A.P. 302(a).

      In any event, Appellant’s attempt to state an exception under Holmes

fails. To establish a claim of ineffective assistance of counsel, three prongs

must be established: “(1) the legal claim underlying the ineffectiveness claim

has arguable merit; (2) counsel’s action or inaction lacked any reasonable

basis designed to effectuate petitioner’s interest; and (3) counsel’s action or


                                     - 11 -
J-S80042-18



inaction resulted in prejudice to petitioner.” Commonwealth v. Mason, 130

A.3d 601, 618 (Pa. 2015) (citations omitted). The failure to establish any one

of the three prongs will defeat the claim of ineffectiveness. Id.

      The Pennsylvania Supreme Court “has expressed a distinct preference

for a hearing on counsel’s strategy before venturing to hold that counsel

lacked   a   reasonable   basis   for     his    or   her   actions   or   inactions.”

Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010).                    Therefore,

“[a]s a general rule, a lawyer should not be held ineffective without first having

an opportunity to address the accusation in some fashion.” Id.

      In Humpheys, this Court recognized that the failure to object to a jury

instruction on robbery that did not include a definition of theft may have

arguable merit. See Humpheys, 532 A.2d at 840 (discussing Robinson).

Nevertheless, the failure to object to the absence of a definition of theft does

not constitute ineffectiveness per se. See id.

      Based on our review, we conclude that Appellant has not established his

claim was both so meritorious and apparent from the record that immediate

consideration would best serve the interests of justice. See Mason, 130 A.3d

at 618; Green, 204 A.3d at 486-87. Appellant has not analyzed Humpheys

or Robinson in light of all the evidence presented at trial, which included

Appellant’s own statements that he took Complainant’s cellphone. Appellant

has not developed a record that trial counsel lacked any reasonable basis

under the facts of this case.     See Mason, 130 A.3d at 618.              Moreover,

Appellant’s bald assertion that the crux of his defense was whether a theft

                                        - 12 -
J-S80042-18



occurred does not establish actual prejudice under the circumstances of this

case. See Humpheys, 532 A.2d at 840.

      Therefore, we find no merit to Appellant’s assertion that his ineffective

assistance of counsel claim presents the type of extraordinary circumstance

set forth in Holmes. See Holmes, 79 A.3d at 563, 577. Accordingly, we

have no basis to entertain the merits of Appellant’s ineffectiveness claim in

this direct appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/19




                                    - 13 -
