J-S02002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MONTANA NIXON,

                        Appellant                  No. 3168 EDA 2014


         Appeal from the Judgment of Sentence October 24, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000053-2014


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED MARCH 15, 2016

     Appellant, Montana Nixon, appeals from the judgment of sentence

entered following his convictions of robbery, theft by unlawful taking, and

receiving stolen property. We affirm.

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

            On December 4, 2013, Ms. Latesha Rucker, holding her
     iPhone in her right hand, boarded a southbound SEPTA Broad
     Street Line train at Broad and Hunting Park [at] approximately 3
     p.m. (N.T. Trial (Waiver) Vol. 1, 9). At the time she boarded
     and sat down in the train, she noticed two men speaking with
     each other (identified as [Appellant] and Khary Littles). (N.T.
     Trial (Waiver) Vol. 1, pp. 10-11). They each boarded the train
     sometime prior to the Hunting Park stop (N.T. Trial (Waiver) Vol.
     1, p. 10).

           They were seated on the same side of the train car
     separated only by the train’s doors. (N.T. Trial (Waiver) Vol. 1,
     p. 11). Ms. Rucker said they were speaking to each other as
     they watched her enter the train car. Then a short time later,
     Mr. Littles stood, walked to the back of the train car, and he
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     entered the adjoining car. (N.T. Trial (Waiver) Vol. 1, pp. 11-12,
     15).

           Upon reaching the Broad and Erie stop and after the train
     doors opened, the Appellant snatched Ms. Rucker’s iPhone from
     her hand and ran off the subway train and up the station stairs.
     (N.T. Trial (Waiver) Vol. 1, pp. 12-14). According to Ms. Rucker,
     Mr. Littles also exited the train at the same station but from
     another train car and walked in a different direction than the
     Appellant. (N.T. Trial (Waiver) Vol. 1, [p]. 21-24). Ms. Rucker
     barely got off before the train doors closed and gave chase of
     the thief but lost sight of him once he exited the station onto the
     street[.] Ms. Rucker abandoned the chase after she could not
     see him when she reached street level.

            But then she spotted a police car parked nearby and
     approached a police officer (later identified as Officer De[n]nis
     Herod), to tell him about the iPhone stolen from her on the
     subway train along with a description of the perpetrator.
     Coincidentally, around that very moment, Ms. Rucker saw Mr.
     Littles approximately 10-15 feet away from the police car and
     pointed him out to the police officer, who shortly thereafter
     picked up Mr. Littles (N.T. Trial (Waiver) Vol. 1, pp. 12-14, 24).
     Ms. Rucker went on to describe the man who stole the phone as
     light skinned wearing a burgundy hoodie, tan pants, a tan coat
     and a hat with white stripes around it (N.T. Trial (Waiver) Vol. 1,
     pp. 17, 29-30).      Officer Herod testified that he had been
     approached by Ms. Rucker around 3:25 or 3:30 and largely
     corroborated her testimony including the perpetrator’s
     description[] and he broadcasted this identification information
     over the police radio. (N.T. Trial (Waiver) Vol. 1, pp. 27-32).
     Not long thereafter, Police Officer Michael Lewis saw a man
     between houses on the 1400 block of Allegheny Avenue who was
     wearing clothing matching those of the iPhone robber announced
     in Officer Herod’s radio broadcast (N.T. Trial (Waiver) Vol. 1, pp.
     33-35).     He paid notice to the man because he appeared
     nervous and was banging on the door of 1417 Allegheny. About
     five minutes after Appellant entered this building, Officer Lewis
     went over, knocked on the door and a resident permitted him to
     enter. He then went to the 2nd floor and knocked on the door
     and the Appellant opened it. The Appellant was wearing some
     type of pajamas, claiming he just got out of the shower. Officer
     Lewis noticed tan pants lying on a bed with a burgundy hoodie
     hanging on the wall (N.T. Trial (Waiver) Vol. 1, p. 36).

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            Officer Lewis asked him to come downstairs and the
      Appellant agreed. Ms. Rucker, brought over in a police car
      apparently in the interim, identified the Appellant as the robber
      of her phone, while remaining in the police vehicle. (N.T. Trial
      (Waiver) Vol. 1, pp. 18-19). She also testified that the phone
      was not recovered and she paid $200 for a replacement.

Trial Court Opinion, 4/14/15, at 2-4.

      Appellant was charged with robbery, conspiracy, theft by unlawful

taking, and receiving stolen property. On October 24, 2014, the trial court

convicted Appellant of robbery, theft by unlawful taking, and receiving stolen

property. The trial court found Appellant not guilty of conspiracy. Also on

that date, the trial court sentenced Appellant to a term of probation of two

years for the robbery conviction and determined that the remaining

convictions merged for purposes of sentencing. In addition, Appellant was

sentenced to pay $200 in restitution. This appeal followed. Both Appellant

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

      Appellant presents the following issue for our review:

      I. Is [Appellant] entitled to an Arrest of Judgment on the charge
      of Robbery and any and all other charges that merged with
      Robbery including Receiving Stolen Property where the evidence
      was insufficient to sustain the verdict as the Commonwealth
      failed to prove that [Appellant] was the perpetrator of the crime
      and alternately failed to prove that a Robbery had actually
      occurred?

Appellant’s Brief at 3.    In this sole issue purporting to challenge the

sufficiency of the evidence, Appellant argues that (a) the trial court should

have found credible Appellant’s evidence regarding his alibi that he was at


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work when the robbery took place, and the trial judge erred in failing to

accept the evidence, Appellant’s Brief at 12-19, and (b) the Commonwealth

failed to prove an element of the crime of robbery. Appellant’s Brief at 19-

23.

      A sufficiency of the evidence review, however, does not include an

assessment of the credibility of the testimony. Commonwealth v. Wilson,

825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly

characterized as a weight of the evidence challenge. Id. A challenge to the

weight of the evidence questions which evidence is to be believed.

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

Indeed, claims challenging the weight of the evidence and sufficiency of the

evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d

745 (Pa. 2000) (discussing the distinctions between a claim challenging the

sufficiency of the evidence and a claim that the verdict is against the weight

of the evidence).     “A true weight of the evidence challenge concedes that

sufficient evidence exists to sustain the verdict but questions which evidence

is to be believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.

Super. 2006) (quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013

(Pa. Super. 2001)).

      In Commonwealth v. Grahame, 482 A.2d 255, 259 (Pa. Super.

1984), we made the following observation regarding challenges to the




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identity of the perpetrator of a crime being an attack on the weight of the

evidence:

              Proof beyond a reasonable doubt of the identity of
              the accused as the person who committed the crime
              is essential to a conviction. Commonwealth v.
              Reid, 123 Pa. Super. 459, 187 A 263 (1936). The
              evidence of identification, however, needn’t be
              positive and certain in order to convict, although any
              indefiniteness and uncertainty in the identification
              testimony goes to its weight. Commonwealth v.
              Mason, 211 Pa. Super. 328, 236 A.2d 548 (1967).

      Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564,
      566 (1973). (Emphasis in original).

Grahame, 482 A.2d at 259. Accordingly, we will consider the first part of

Appellant’s issue as being one challenging the weight of the evidence.       As

previously stated, although sufficiency and weight claims are distinct,

Appellant addressed both issues in a single intermingled argument in his

brief to this Court. Appellant’s Brief at 12-23. We will address the claims

separately.

      We begin with Appellant’s challenge to the weight of the evidence to

support the determination of his identity as the perpetrator of the crime in

light of his alibi claim. However, Appellant has failed to preserve a challenge

to the weight of the evidence for our review.        Pa.R.Crim.P. 607 and its

comment instruct that in order to preserve for appellate review a claim that

a verdict is against the weight of the evidence, the issue must be raised with

the trial judge in a motion for a new trial either orally or in writing prior to

sentencing, or in a post-sentence motion.           Pa.R.Crim.P. 607.     Here,

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Appellant never filed with the trial court an oral or written motion for a new

trial prior to sentencing, or a post-sentence motion challenging the weight of

the evidence.     Accordingly, we conclude that the issue challenging the

weight of the evidence is waived. See Pa.R.Crim.P. 607; Commonwealth

v. Butler, 729 A.2d 1134, 1140 (Pa. Super. 1999) (holding that a challenge

to the weight of the evidence is waived for failure to present the issue first

to the trial court).

      Even if we were to ignore the waiver of the weight claim and address

the issue, we would conclude that there is no basis for relief.             In

Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme Court set

forth the following standards to be employed in addressing challenges to the

weight of the evidence:

             A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. Commonwealth v. Widmer, 560
      Pa.    308,    319,    744    A.2d   745,     751-[7]52    (2000);
      Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
      1189 (1994). A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Widmer, 560
      A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial
      judge is to determine that ‘notwithstanding all the facts, certain
      facts are so clearly of greater weight that to ignore them or to
      give them equal weight with all the facts is to deny justice.’” Id.
      at 320, 744 A.2d at 752 (citation omitted). It has often been
      stated that “a new trial should be awarded when the jury’s
      verdict is so contrary to the evidence as to shock one’s sense of
      justice and the award of a new trial is imperative so that right
      may be given another opportunity to prevail.” Brown, 538 Pa.
      at 435, 648 A.2d at 1189.




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           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the 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. Brown, 648 A.2d at 1189. 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.          Commonwealth v.
          Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
          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.

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

          The term “discretion” imports the exercise of
          judgment, wisdom and skill so as to reach a
          dispassionate conclusion within the framework of the
          law, and is not exercised for the purpose of giving
          effect to the will of the judge. Discretion must be
          exercised on the foundation of reason, as opposed to
          prejudice, personal motivations, caprice or arbitrary
          actions.   Discretion is abused where the course
          pursued represents not merely an error of judgment,
          but where the judgment is manifestly unreasonable
          or where the law is not applied or where the record
          shows that the action is a result of partiality,
          prejudice, bias or ill-will.



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      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      As   previously    stated,   Appellant   challenges   the   trial   court’s

determination of the credibility of the alibi evidence presented by Appellant

as opposed to the testimony of the victim and other Commonwealth

witnesses. Appellant’s Brief at 12-19. The trial judge, sitting as the finder

of fact, chose to believe the evidence presented by the Commonwealth and

to disregard the evidence presented by Appellant, as was his right. As the

trial court aptly explained:

             In the present matter, this Court found the testimony of
      the victim credible particularly her accurate description of the
      Appellant which was given to the police prior to the police
      investigation and the eventual arrest of the Appellant. The
      [victim’s] testimony is supported by the police testimony related
      to finding and apprehending the Appellant.

            This Court did not find the Appellant credible. This Court
      discounted his sole defense that it was physically impossible for
      the Appellant to have robbed Ms. Rucker because this defense
      rests completely on the unfounded assumption that the various
      clocks at the Rite Aid and SEPTA were synchronized down to the
      exact minute.       Further, as already stated, Ms. Rucker’s
      eyewitness testimony identifying the Appellant as the thief down
      to the color of his garments was compellingly credible. The
      Court found Ms. Rucker’s testimony credible and that of the
      police. The Court credited police testimony as to the time of the
      crime. (N.T. Waiver Trial Vol. 2, pp. 51).




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Trial Court Opinion 4/14/15, at 8. Thus, we decline Appellant’s invitation to

assume the role of fact finder and reweigh the evidence. Accordingly, had

we addressed the merits of this claim, we would conclude that the trial court

did not abuse its discretion in determining that Appellant’s weight of the

evidence claim lacks merit.

      We will next consider Appellant’s claim regarding the sufficiency of the

evidence. Specifically, Appellant argues the Commonwealth failed to prove

he committed the crime of robbery because the Commonwealth failed to

prove Appellant took the victim’s phone with the necessary use of force.

Appellant’s Brief at 19-23. We disagree.

      When reviewing challenges to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.      Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).     “Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.”    Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)).      However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. Moreover, this Court may not

substitute its judgment for that of the fact finder, and where the record


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contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented.    Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

      We proceed to address Appellant’s claim that the evidence was

insufficient to convict him of robbery.          Pursuant to 18 Pa.C.S. §

3701(a)(1)(v), “[a] person is guilty of robbery if, in the course of committing

a theft, he . . . physically takes or removes property from the person of

another by force however slight.” The force sufficient to establish a robbery

may be either actual or constructive.    Actual force is applied to the body,

while constructive force is the use of threatening words or gestures and

operates on the mind. Commonwealth v. Brown, 484 A.2d 738, 741 (Pa.

1984).   However, the amount of force need not be substantial, because

“[a]ny amount of force applied to a person while committing a theft brings

that act within the scope of the robbery statute.”        Commonwealth v.

Bedell, 954 A.2d 1209, 1213 (Pa. Super. 2008) (quoting Commonwealth

v. Duffey, 548 A.2d 1178, 1182 (Pa. 1988)). “The degree of actual force is

immaterial, so long as it is sufficient to separate the victim from his property

in, on or about his body.” Bedell, 954 A.2d at 1213 (quoting Brown, 484

A.2d at 741).

      In support of his argument, Appellant cites the following three cases,

in which this Court reversed robbery convictions upon a finding that the


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requisite force was not employed. In Commonwealth v. Smith, 481 A.2d

1352 (Pa. Super. 1984), the defendant was convicted of robbery under

section 3701(a)(1)(v) after removing a pack of cigarettes from the pocket of

a blind person who was unaware of the removal. Smith, 481 A.2d at 1353.

This Court reversed, concluding that the evidence was insufficient to support

the conviction because the defendant removed the property by stealth and

not by force. Id. at 1353-1355.

     In Commonwealth v. Windell, 529 A.2d 1115 (Pa. Super. 1987), the

defendant was convicted of robbery under section 3701(a)(1)(v) after

removing a coin purse from the victim’s person without the victim’s

knowledge. Windell, 529 A.2d at 1115-1116. This Court, applying Smith,

reversed because the crime was conducted by stealth, and the only force

shown was “the force needed to take and carry away another person’s

property.” Id. at 1117.

     In Commonwealth v. Williams, 550 A.2d 579 (Pa. Super. 1988), the

defendant was convicted of robbery under section 3701(a)(1)(v) after rolling

an intoxicated, unconscious person onto his side and removing his wallet.

Williams, 550 A.2d at 580.     Relying on Smith and Windell, this Court

reversed, concluding that because the victim was not aware of the force

utilized to take the property, the defendant could not be convicted of

robbery. See Williams, 550 A.2d at 582 (stating that “If the victim in this

case had been aware of this force, a robbery conviction might have stood


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based upon the possible distinction between the force used to roll the victim

over, and the force used to remove the wallet.”).      However, we conclude

that these three cases are inapposite because the instant victim was fully

aware of Appellant forcefully taking her possession.

      As the trial court stated in its opinion:

             In the instant matter, The Appellant in the process of
      stealing Ms. Rucker’s iPhone literally grabbed it out of her hand
      and then fled from the subway train. Her testimony alone
      proved all of the requisite elements of robbery. As such, based
      on the evidence brought forth at trial, the Commonwealth met
      its burden on sufficiency of the evidence.

Trial Court Opinion, 4/14/15, at 7.

      Likewise, our review of the record, in the light most favorable to the

Commonwealth, reflects ample evidence that Appellant used a sufficient

amount of force to steal the iPhone from the victim, of which the victim was

aware.   At trial, the Commonwealth presented testimony from the victim

that, while she was seated on the subway train and Appellant was standing,

Appellant “snatched” the victim’s phone out of her right hand, fled the

scene, and the victim then chased Appellant off of the subway train. N.T.,

9/29/14, at 12-13, 21-24.       Therefore, the victim was fully aware of the

taking of her phone.    This evidence, which was found credible by the trial

court sitting as the finder of fact, together with the inferences therefrom,

was sufficient to prove beyond a reasonable doubt that Appellant removed

property from the person of another by force, however slight.         Hence,




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Appellant’s action was sufficient to establish the crime of robbery and his

contrary claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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