J-S38045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        v.

PIERRE BEAVOGUI

                             Appellant                 No. 414 EDA 2016


             Appeal from the Judgment of Sentence January 7, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0006727-2013

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 30, 2017

        Appellant, Pierre Beavogui, appeals from the judgment of sentence imposed

in the Philadelphia County Court of Common Pleas after he was found guilty of

robbery—threatening serious bodily injury1 and possession of an instrument of

crime2 at a nonjury trial. Appellant claims the evidence is insufficient. We affirm.

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

              This case involves an incident which occurred at 3521 North
           Smedley Street in Philadelphia on January 21, 2012. Reginald
           Hassan owns a car detailing shop at that address. Late in the
           afternoon, at around 6PM, Appellant arrived with a second male
           to discuss a deal involving the sale of Mr. Hassan’s Mercedes
           Benz CLS. Mr. Hassan showed Appellant the vehicle; he showed
           him what was under the hood, discussed the number of miles,
           and went through the entire vehicle. After ten minutes, Mr.
           Hassan asked Appellant if he was ready to buy or not. Then,

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 907.
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           Appellant and his co- conspirator each pulled out a handgun and
           pointed it at Mr. Hassan. [Mr. Hassan testified at trial that
           Appellant and the co-conspirator were located less than ten feet
           away when they pulled out their firearms. Mr. Hassan described
           Appellant’s firearm as “a black firearm, a semiautomatic
           weapon,”3 about seven to eight inches long.] With Appellant’s
           partner still pointing his gun at Mr. Hassan, Appellant went
           through each pocket in Mr. Hassan’s jacket at which point Mr.
           Hassan throws his jacket at Appellant.        Appellant took the
           jacket, Mr. Hassan’s chain, and his iPad. Appellant and his
           partner left in a car outside the shop. As Appellant pulled away
           he shouted to Mr. Hassan saying, “[D]on’t you effing call the
           cops, you know, we’ll effing kill your kids.”

              Appellant took, in total from Mr. Hassan, the iPad, a chain
           with a face on it, and $49,500 in cash. In support of his claim
           that he had $49,500 on his person, Mr. Hassan offers bank
           receipts indicating that he had withdrawn some of the cash for a
           contracting job at 1737 Christian Street. The rest he had won
           by gambling. Mr. Hassan withdrew from two separate accounts
           in the following denominations; $5,000 from account number
           XXXX8101, $6,010 from Wells Fargo Account XXXXXXXXX4634,
           and $9,000 from the same Wells Fargo Account. All accounts
           are under Mr. Hassan’s name and all three withdrawals were
           made on January 20, 2012. The gold chain was also recovered.
           During the trial testimony, when asked if anything else had been
           taken from him Mr. Hassan responded, “No, nothing else was
           taken but my pride.”

              After being robbed, Mr. Hassan contacted his friend to go
           looking for Appellant to try and get his money back. His co-
           conspirator was armed. After they both searched unsuccessfully
           for several hours and Mr. Hassan was able to calm down, Mr.
           Hassan called the police and reported the robbery. During the
           police investigation fingerprints were taken from the front
           paneling of the Mercedes. Mr. Hassan’s story is corroborated by
           the Incident Report filed by Officer [Loretta] Ammonds.

             Mr. Hassan and Appellant had met twice before the robbery
           on January 21, 2012. The first time that Appellant and Mr.
           Hassan met was at a gas station in Yeadon a few weeks before

3
    N.T., 5/29/15, at 18.



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       the robbery. During this meeting, Appellant and Mr. Hassan
       discussed the sale of Mr. Hassan’s Mercedes Benz CLS. The
       second time Mr. Hassan and Appellant met was at the Microtel to
       further discuss the sale of the car. During this meeting, Mr.
       Hassan also met the second individual who robbed him on
       January 21, 2012. This is the last time Mr. Hassan would see
       Appellant until months later when Mr. Hassan saw Appellant in
       Harrah’s casino in Chester. During the encounter, Mr. Hassan
       confronted Appellant and then contacted the police. Appellant
       was arrested on January 28, 2013. After the arrest, Appellant’s
       fingerprints were taken and compared to the latent prints taken
       from the Mercedes. The fingerprint comparison yielded a match
       between Appellant’s left middle and ring finger and the latent
       prints taken from passenger front quarter panel of the Mercedes.
       Appellant did not have a valid license to carry firearms nor did
       he have a valid Sportsman’s Firearm Permit.

          Appellant testified at trial that he has never had a gun in his
       entire life. He testified that he has never robbed anyone in the
       United States in his entire life. According to Appellant, he met
       with someone he called Buddy during the encounter at the gas
       station to discuss the sale of the Mercedes, not with Mr. Hassan.
       Buddy offered the car for $17,000 with a defective battery.
       Appellant attempted to get a lower price and agreed to meet at a
       later date to see the vehicle after a new battery has been
       installed.

          On January 21, 2012, Appellant testified on direct
       examination that he arrived at Mr. Hassan’s shop. Mr. Hassan
       then told Appellant to go to the Microtel where Mr. Hassan would
       meet him after installing the new battery. Appellant testifies
       that it was Mr. Hassan’s room at the Microtel. Appellant did not
       purchase the vehicle during this meeting. Appellant testified
       that this is the last time he saw Mr. Hassan until their encounter
       at Harrah’s Casino months later.          On Cross Examination,
       Appellant testified that Buddy introduced him to Mr. Hassan. At
       the point when Appellant arrived at Mr. Hassan’s shop, there
       were three people present along with Mr. Hassan. He then
       testified again on Cross-Examination that he met Mr. Hassan at
       the Microtel.




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              In his statement to Detective Hardcastle[4] on January 28,
           2013, Detective Hardcastle asked Appellant, “Was anyone else
           inside the detail shop when you went to buy the Mercedes?” to
           which Appellant responded, “No.” During the same, Detective
           Hardcastle asked Appellant, “Have you ever been to that hotel
           with the person you were buying the Mercedes from?” to which
           he responded, “No.”        Appellant and Detective Hardcastle
           reviewed and discussed the record of the interview together
           prior to Appellant signing each page of the interview with
           Detective Hardcastle.       Appellant testified that Detective
           Hardcastle did not understand Appellant’s English. Appellant
           testified that he got in trouble in New York for a white-collar
           crime involving credit cards.

Trial Ct. Op., 12/1/16, at 2-5 (record citations omitted).

        Appellant proceeded to a nonjury trial on May 29, 2015.        The trial court

found Appellant guilty of robbery—threatening serious bodily injury and possession

of an instrument of crime. On January 7, 2016, the trial court sentenced Appellant

to an aggregate sentence of five to eleven years’ imprisonment.

        Appellant timely appealed from the judgment of sentence and complied with

the trial court’s order to submit a Pa.R.A.P. 1925(b) statement.          This appeal

followed.

        Appellant presents the following questions for review:

           WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
           LAW SUCH THAT NO REASONABLE FACT FINDER COULD HAVE
           FOUND APPELLANT THREATENED THE COMPLAINANT WITH, OR
           INTENTIONALLY PUT THE COMPLAINANT IN FEAR OF,
           IMMEDIATE SERIOUS BODILY HARM, SUFFICIENT TO SUPPORT
           A CONVICTION FOR ROBBERY.

           WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
           LAW SUCH THAT NO REASONABLE FACT FINDER COULD HAVE

4
    Detective Hardcastle’s first name is not apparent in the record.



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          FOUND APPELLANT POSSESSED AN INSTRUMENT OF CRIME
          WITH INTENT TO EMPLOY SAME CRIMINALLY, SUFFICIENT TO
          SUPPORT A CONVICTION OF POSSESSION OF AN INSTRUMENT
          OF CRIME.

Appellant’s Brief at 7.

      Appellant first argues there is insufficient evidence to sustain a conviction of

robbery because the Commonwealth has failed to prove his actions threatened or

placed Mr. Hassan (“the victim”) in immediate fear of serious bodily injury.

Appellant notes the victim did not testify he was afraid of suffering serious bodily

injury. Appellant further suggests that the victim threw his jacket at Appellant out

of defiance during the robbery and pursued Appellant after the robbery. No relief

is due.

      When reviewing a challenge to the sufficiency of the evidence,

          [t]he standard we apply . . . is whether viewing all the evidence
          admitted at trial in the light most favorable to the verdict winner,
          there is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt. In applying
          the above test, we may not weigh the evidence and substitute
          our judgment for the fact-finder. In addition, we note that the
          facts and circumstances established by the Commonwealth need
          not preclude every possibility of innocence.           Any doubts
          regarding a defendant’s guilt may be resolved by the fact-finder
          unless the evidence is so weak and inconclusive that as a matter
          of law no probability of fact may be drawn from the combined
          circumstances. The Commonwealth may sustain its burden of
          proving every element of the crime beyond a reasonable doubt
          by means of wholly circumstantial evidence.           Moreover, in
          applying the above test, the entire record must be evaluated and
          all evidence actually received must be considered. Finally, the
          finder of fact [,] while passing upon credibility of witnesses and
          the weight of the evidence, is free to believe all, part or none of
          the evidence.




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Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015) (citation

omitted), appeal denied, 138 A.3d 4 (Pa. 2016).

      “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 . . . .”   18 Pa.C.S. § 3701(a)(1)(ii).   This Court uses an objective

standard to determine whether the defendant has threatened another with fear of

immediate serious bodily injury. Commonwealth v. Kubis, 978 A.2d 391, 398

(Pa. Super. 2009). The subjective state of mind of the victim is not controlling.

Id.   Further, “the threat posed by the appearance of a firearm is calculated to

inflict fear of deadly injury. . . .”   Commonwealth v. Hopkins, 747 A.2d 910,

914 (Pa. Super. 2000).

      Viewed in the light most favorable to the Commonwealth, the evidence is

sufficient to sustain Appellant’s conviction for robbery—threatening serious bodily

injury. The victim testified Appellant and a co-conspirator, from less than ten feet

away, pulled out their firearms and pointed them at the victim. The co-conspirator

continued to point his firearm at the victim while Appellant went through the

victim’s pockets.    Under these circumstances, a reasonable person would be

placed in fear of immediate serious bodily injury. See Kubis, 978 A.2d at 398;

Hopkins, 747 A.2d at 914. Appellant’s suggestion that the victim was unafraid

goes to the victim’s subjective state of mind, which is not dispositive. See Kubis,

978 A.2d at 398. Thus, Appellant’s first argument must fail.




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      Next, Appellant argues the evidence is insufficient to establish possession of

an instrument of crime. Appellant asserts the firearm used by Appellant was not

discovered during police investigation and the victim’s testimony alone was

insufficient to find that he possessed a firearm. We disagree.

      “A person commits a misdemeanor of the first degree if he possesses any

instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(b). “To

prove possession . . . the Commonwealth must establish that an individual either

had actual physical possession of the weapon or had the power of control over the

weapon with the intention to exercise that control.” In re R.N., 951 A.2d 363,

369-70 (Pa. Super. 2008). The testimony of a single witness is enough to prove

possession of an instrument of crime.     Commonwealth v. Antidormi, 84 A.3d

736, 757 (Pa. Super. 2014); cf. Commonwealth v. Robinson, 817 A.2d 1153,

1161-62 (Pa. Super. 2003).      Moreover, the use of the weapon to perpetrate a

robbery establishes the defendant’s intent to employ the weapon criminally.

Commonwealth v. Robertson, 874 A.2d 1200, 1209 (Pa. Super. 2005).

      Instantly, the victim testified without hesitation he saw both Appellant and a

co-conspirator carrying firearms during the robbery.        The victim was able to

describe Appellant’s firearm in detail, including its type, size, and color. Therefore,

the victim’s testimony establishes Appellant possessed a firearm and used it in the

course of a robbery. See Antidormi, 84 A.3d at 751; Robertson, 874 A.2d at

1209. Accordingly, Appellant’s second argument warrants no relief.




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        Lastly, Appellant argues that the evidence was insufficient because the

victim’s testimony regarding the entire robbery was inconsistent, incredible, and

uncorroborated by any physical evidence.5      Further, Appellant’s challenge to the

victim’s credibility or weight of the evidence ignores our standard of review, which

requires us to review the evidence in a light most favorable to the Commonwealth.

See Talbert, 129 A.3d 536, 542-43. In any event, having reviewed the record,

we conclude there was ample basis for the trial court to credit the victim’s

testimony and find Appellant guilty of robbery—threatening serious bodily injury

and possessing an instrument crime.        See Robinson, 817 A.2d at 1161-62

(noting that “there is no requirement that the items taken in a theft or robbery be

recovered” and the fact that a weapon is not found “is not dispositive” of whether

the defendant was in possession of a firearm).     Accordingly, no relief is due on

Appellant’s final argument, and his challenges to the sufficiency of the evidence

fail.

        Judgment of sentence affirmed.




5
  Claims directed at the credibility of testimony implicate the weight, not the
sufficiency, of the evidence. Any challenge to the weight of the evidence has been
waived. Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012); see also
Pa.R.A.P. 1925(b)(4)(vii).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2017




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