J-S35031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TROY ANTHONY JORDAN                        :
                                               :
                       Appellant               :   No. 1931 MDA 2017

              Appeal from the Judgment of Sentence July 26, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000250-2017


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 11, 2018

        Troy Anthony Jordan (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of conspiracy to commit robbery and

conspiracy to commit theft by unlawful taking.1 We affirm.

        The Commonwealth charged Appellant with robbery, theft by unlawful

taking, simple assault, and conspiracy to commit each of these three offenses.

Appellant challenges the sufficiency and weight of the evidence. Accordingly,

we review the evidence adduced at the jury trial held on June 6, 2017.

        Joshua Van Brunt (victim) testified that at approximately 2:00 a.m. on

April 12, 2016, he was working alone at a Turkey Hill convenience store in

Annville Township, Lebanon County, when a man wearing a mask entered the

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1   18 Pa.C.S.A. §§ 903(a), 3701(a)(1)(ii), 3921(a).
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store, pointed a gun at the victim, and ordered him into the store bathroom.

N.T., 6/6/17, at 8-14. The man demanded the code to the cash register. The

man then took at least $100 cash from the register and three cartons of

Newport cigarettes. The victim described the man as approximately 6’ tall,

“darker-skinned,” and wearing a backpack and a jacket with the hood up. Id.

at 14. The victim could not see the man’s face because of the mask. The

Commonwealth played surveillance video taken inside the store depicting

these events. Id. at 17-18.

     The Commonwealth also called Appellant’s roommate, Marty Cooper, as

a witness.   Cooper testified that he “unknowingly drove the vehicle in the

[r]obbery,” see id. at 21, explaining that on the day of the robbery, he was

with Appellant and their other roommate and friend, Trenton Hoek. Appellant

joked twice, first at home and then at a bar, about robbing someone. Id. at

22-23. The second time, Appellant stated that he wanted to “get[ ] a rush”

from holding a gun to someone. Id. at 23. Cooper, however, did not take

Appellant seriously. The three men returned home briefly, Appellant got his

backpack, and they went out again, with Cooper driving, Appellant in the front

passenger seat, and Hoek in the rear. Id. at 28. Cooper thought that he was

driving Appellant to Annville to buy marijuana.    Id. at 24, 46.   Appellant

directed Cooper to park in an alley near a Turkey Hill store and then exited

the car. Hoek got into the front seat. Id. at 28. When Appellant returned to

the car, he “was in . . . a hurry” and told Cooper, “[G]o, go go.” Id. at 25.


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Cooper drove off. After they returned home, Appellant told Cooper that he

“hit” — meaning “robbed” — the Turkey Hill store with a gun, locked the store

clerk in the bathroom, opened the cash register, and took cigarettes. Id. at

26. Cooper also saw that Appellant had a black BB gun. Id. at 27.

      Cooper testified that he also was charged in connection with the

robbery, and that he pleaded guilty to robbery, conspiracy to commit robbery,

theft, conspiracy to commit theft, attempted simple assault, conspiracy to

commit simple assault, unsworn falsification to authorities, and driving under

suspension. Id. at 8-10. At the time of Appellant’s trial, Cooper had not been

sentenced, but he hoped — despite not being promised any particular

sentence — that his cooperation in Appellant’s case would be favorable to him

at sentencing. Id. at 21. On cross-examination, Cooper admitted that on the

day after the robbery, he told police that he, Appellant, and Hoek all discussed

robbing a Turkey Hill store near their house. Id. at 33. However, Cooper

then maintained that when Appellant exited the car in Annville, Appellant told

him he was going to buy marijuana, and Cooper was not sure whether

Appellant robbed the Turkey Hill until they returned home.       Id. at 46-47.

Cooper pled guilty to being an accomplice or conspirator in the robbery

because his attorney recommended it; Cooper testified to his understanding

that because he was the driver, he “could still be guilty by association.” Id.

at 47-48.

      Hoek also testified as a Commonwealth witness. He testified that he


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was with Appellant and Cooper at a bar on the date of the robbery. Id. at 57-

58. Hoek did not remember specifically what they discussed, but Appellant

and Cooper talked about robbing someone, and he tried to dissuade them.

Id. at 59-60. They all went home, and then all went back out, and on the

way to the Turkey Hill store, they again discussed a robbery. Id. at 62. After

they parked at the Turkey Hill, Appellant went into the store and returned with

cigarettes and money. Id. at 63. Hoek admitted that in his original statement

to police, he denied being in the car with Appellant and Cooper, but on the

day before trial, Hoek told the prosecutor that statement was not true. Id. at

62. Hoek acknowledged that in light of his testimony, he could be charged.

Id. at 64.

      The Commonwealth also called two police officers, who testified about

their investigation of the robbery. The trial court summarized:

      • Information was received by police that a Chevy Trailblazer was
        involved in the robbery. Officers located that vehicle. It was
        registered to COOPER.

      • A Search Warrant was executed for [Appellant’s] residence and
        COOPER’s vehicle. Inside the vehicle and the residence were
        unopened Newport cigarette packages consistent with those
        taken from Turkey Hill. [N.T., 6/6/17, at 95-96.]

      • While police were executing the Search Warrant of
        [Appellant’s] residence, one officer observed a book bag inside
        a red Pontiac Sunfire parked at the residence. This book bag
        matched the description of the book bag shown on the security
        video tape as being worn by the robber. [Id. at 95.]

      • [Appellant] could not be located at his residence or in the
        Annville area. Eventually, [Appellant] was apprehended in . .
        . Maryland on November 21, 2016. [Id. at 98.]

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Trial Court Opinion, 11/8/17, at 3-4. Appellant did not testify or present any

witnesses.

       The jury found Appellant guilty of conspiracy to commit robbery and

conspiracy to commit theft, but not guilty of robbery, theft by unlawful taking,

simple assault, and conspiracy to commit simple assault. The jury also found

that Appellant did not possess or use a deadly weapon in the commission of

the offenses.

       On July 26, 2017, the trial court sentenced Appellant to 18 to 36 months’

imprisonment for conspiracy to commit robbery, and found that Appellant’s

conviction of conspiracy to commit theft merged for sentencing purposes.2

Appellant filed a post-sentence motion, challenging both the sufficiency and

weight of the evidence, which the court denied. Appellant timely appealed

and complied with the court’s order to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal.

       Appellant presents two issues for our review:

       I. Did the Commonwealth fail to present sufficient evidence at trial
       to prove beyond a reasonable doubt that [Appellant] was involved
       in the robbery of the Turkey Hill or that he conspired with anyone
       to either rob or steal from the Turkey Hill?


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2 The trial court reasoned that based on the jury’s finding that Appellant did
not possess a firearm, the jury rejected the Commonwealth’s theory of the
case that it was Appellant who entered the store and pulled a gun on the clerk.
The trial court stated that it imposed the sentence based on this finding. Trial
Court Opinion, 11/8/17, at 5.


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        II. Were the verdicts of guilty at counts II and IV against the
        weight of the evidence because the Jury placed too great a weight
        on the testimony of the Commonwealth’s witnesses, Marty Cooper
        and Trent Hoek that [Appellant] was involved with or conspired to
        rob the Turkey Hill.

Appellant’s Brief at 4.

        We   address   Appellant’s   issues   together.   First,   he   avers   the

Commonwealth failed to present sufficient evidence to prove that he was

involved in the robbery or that he conspired with anyone to rob the Turkey

Hill.   Specfically, he maintains that the victim was unable to identify the

robber; “[t]he only two witnesses that testified that [Appellant] discussed

robbing the Turkey Hill were Cooper and [Hoek]”; both Cooper and Hoek

admitted that they initially lied to the police regarding their roles in the

robbery; and the jury found that Appellant “did not a possess a firearm and

was not the person who actually entered the Turkey Hill and robbed the clerk.”

Id. at 9.     In Appellant’s second issue, he challenges the weight of the

evidence. Appellant reiterates that Cooper and Hoek both testified that they

lied to the police about their roles in the robbery, and that they hoped their

testimony would result in favorable treatment from the Commonwealth.

Appellant concludes that “the jury placed too great a weight on the testimony

of Cooper and [Hoek.]” Id. at 10. We disagree.

        The trial court accurately stated, “A motion for new trial on grounds that

the verdict is contrary to the weight of the evidence concedes that there is

sufficient evidence to sustain the verdict[.]” Trial Court Opinion, 11/8/17, at


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6, quoting Commonwealth v. Whiteman, 485 A.2d 459, 462 (Pa. Super.

1984). See also Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.

2000) (a claim of insufficient evidence argues that there was no reliable

evidence presented as to each element of the offense charged beyond a

reasonable doubt, but a challenge to the weight of the evidence concedes

there was sufficient evidence to sustain the verdict). Here, Appellant concedes

that both Cooper and Hoek testified that Appellant discussed robbing someone

with them; Appellant argues that the jury should not have believed this

testimony. Thus, Appellant only argues, and we only consider, his weight of

the evidence claim. See id.; Whiteman, 485 A.2d at 462.

      In reviewing a challenge to the weight of the evidence, this Court has

explained:

      The weight of the evidence is exclusively for the finder of fact who
      is free to believe all, part, or none of the evidence and to
      determine the credibility of the witness. An appellate court cannot
      substitute its judgment for that of the finder of fact. Thus, we
      may only reverse the lower court’s verdict if it is so contrary to
      the evidence as to shock one’s sense of justice. Moreover, where
      the trial court has ruled on the weight claim below, an appellate
      court’s role is not to consider the underlying question of whether
      the verdict is against the weight of the evidence.           Rather,
      appellate review is limited to whether the trial court palpably
      abused its discretion in ruling on the weight claim.

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013) (citation

omitted). “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish that the defendant (1) entered into an agreement to commit

or aid in an unlawful act with another person or persons, (2) with a shared


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criminal intent and (3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006); see also

18 Pa.C.S.A. § 903(a).

      Appellant’s argument would require this Court to disregard not only the

jury’s credibility findings, but also the trial court’s denial of his post-trial

motion. This is not our function, because the jury, as the factfinder, was free

to believe all, part, or none of Cooper and Hoek’s testimony, and our role, as

an appellate court, is to consider only whether the trial court abused its

discretion in denying Appellant’s weight claim. See Collins, 70 A.3d at 1251.

As detailed above, the Commonwealth presented the following evidence: on

the day of the robbery, Appellant discussed robbing someone with his

roommates, Cooper and Hoek; the three men drove to a Turkey Hill store and

parked; Appellant exited the car and returned, ordering Cooper to drive

quickly; after the three men returned home, Appellant told Cooper that he

“hit” the Turkey Hill, ordered the store clerk into the bathroom, and took cash

and cigarettes from the store; and Cooper saw Appellant’s gun.          On this

record, we cannot find an abuse of discretion by the trial court. See McCall,

911 A.2d at 996. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/11/2018




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