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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   v.                  :
                                       :
WILLIAM VOSE,                          :         No. 3076 EDA 2014
                                       :
                        Appellant      :


           Appeal from the Judgment of Sentence, October 16, 2014,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0003865-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JULY 23, 2015

      William Vose appeals from the judgment of sentence of October 16,

2014, following his conviction of one count of conspiracy to commit robbery.

We affirm.

      The trial court has set forth the procedural history of this matter as

follows:

                   A jury found defendant guilty on June 18,
             2014, of one count of conspiracy to commit robbery.
             He was found not guilty of robbery. This court
             sentenced defendant on October 16, 2014, to three
             to 10 years in prison and a consecutive five-year
             period of probation.

                   Defendant, through counsel, filed a timely
             post-sentence motion on October 21, 2014.       He
             alleged the sentence imposed was unduly harsh and
             excessive and requested a reconsideration of the
             length of the prison term. He also moved for a new
             trial on the ground the verdict was against the
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            weight of the evidence and moved for judgment of
            acquittal or a new trial on the ground the evidence
            failed to establish each element of the crimes
            charged and the commission thereof by defendant.
            Finally, defendant requested a new trial on the basis
            of alleged after-discovered evidence.

                   Before this court addressed the motion,
            defendant filed a notice of appeal on October 28,
            2014. That same day, this court issued an Order
            directing defendant to amend his post-sentence
            motion within 10 days to assert with specificity the
            basis for the claim of after-discovered evidence.
            Defendant did not file an amended petition. This
            court denied the post-sentence motion in an Order
            dated November 13, 2014, and directed defendant to
            file within 21 days a concise statement of issues in
            accordance with Pennsylvania Rule of Appellate
            Procedure 1925(b). Defendant complied with that
            directive.

Trial court opinion, 1/5/15 at 1-2.

      Appellant has raised the following issues for this court’s review:

            1.    Whether the trial court was in error when it
                  ruled against Defendant’s Post Trial Motion in
                  which Defendant submitted and averred that
                  the underlying sentence imposed was unduly
                  harsh and excessive as it relates to the length
                  of the prison term and to mitigation testimony
                  presented?

            2.    Whether the trial [court] was in error when it
                  ruled against Defendant’s Post Trial Motion in
                  which Defendant submitted that the underlying
                  jury’s verdict was against the weight and
                  sufficiency of the evidence and demonstrated a
                  reasonable doubt [as] to whether the
                  Defendant had committed the crimes in which
                  he was charged?

            3.    Whether the trial [court] was in error when it
                  ruled against Defendant’s Motion for Judgment


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                   of Acquittal in which the Defendant submitted
                   that the Commonwealth failed to present
                   sufficient evidence for the trier of fact to find
                   the Defendant guilty of the crimes in which he
                   was charged and because the evidence failed
                   to establish each material element of the
                   crimes charge[d] and the commission thereof
                   by the Defendant beyond a reasonable doubt?

Appellant’s brief at 5.

      Before we may address the merits of the issues raised on appeal, we

must address the Commonwealth’s contention that the appeal should be

quashed.   According to the Commonwealth, the trial court lost jurisdiction

when appellant filed a premature notice of appeal on October 28, 2014, prior

to disposition of his post-sentence motion.     Therefore, the Commonwealth

characterizes the trial court’s November 13, 2014 order denying appellant’s

post-sentence motion as a legal nullity. We disagree.

      We addressed a similar scenario in Commonwealth v. Rojas, 874

A.2d 638 (Pa.Super. 2005), in which the appellant filed a notice of appeal

prior to disposition of his post-sentence motion. Id. at 641. As in this case,

the Commonwealth argued that the appeal divested the lower court of

jurisdiction over the previously filed post-sentence motion, and, therefore,

the order dismissing the appellant’s post-sentence motion was a nullity,

entered without jurisdiction. Id. Citing Commonwealth v. Borrero, 692

A.2d 158 (Pa.Super. 1997), this court disagreed, finding that because,

pursuant to Pa.R.Crim.P. 720, the judgment of sentence does not become

final for appeal purposes until the trial court disposes of the post-sentence


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motion or it is denied by operation of law, the appellant’s direct appeal was

improperly filed from a non-final order and did not divest the trial court of

jurisdiction to decide his post-sentence motion. Id. at 643. As this court

explained in Borrero, where the appellant also filed a premature direct

appeal before his timely post-sentence motions were disposed of by the trial

court or denied by operation of law:

           [T]he appeal did not divest the trial court of
           jurisdiction in this instance. As previously indicated,
           the comment to Rule [720] explicitly prohibits the
           filing of an appeal while post-sentencing motions are
           pending.     Comment to Pa.R.Crim.P., Rule [720],
           42 Pa.C.S.A., supra. The comment further provides
           that a judgment of sentence does not become final
           until post-sentencing motions are ruled upon by the
           trial court or are denied by operation of law. Id.
           Moreover, a trial court may proceed further in any
           matter in which a nonappealable order has been
           entered, notwithstanding the filing of a notice of
           appeal. Pa.R.A.P., Rule 1701(b)(6), 42 Pa.C.S.A.
           Consequently, appellant’s improper appeal did not
           divest the trial court of jurisdiction to decide
           appellant’s post-sentencing motion or deny it by
           operation of law.

Id., quoting Borrero, 692 A.2d at 161 n.4.       Thus, when the trial court

denied appellant’s post-sentence motion on November 13, 2014, appellant’s

judgment of sentence became final for appeal purposes.        Despite having

filed a premature notice of appeal, the instant appeal is not from an

interlocutory judgment of sentence and this court has jurisdiction.      See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a




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determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”).

         In his first issue on appeal, appellant challenges the discretionary

aspects of sentencing.        Appellant argues that the trial court failed to put

reasons on the record justifying an upward departure from the standard

range of the sentencing guidelines.

         “A challenge to the discretionary aspects of a sentence requires the

claimant to set forth in his brief a separate, concise statement of the reasons

relied    upon    for   the   allowance   of    appeal   as   to   that   challenge.”

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002), appeal

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),

citing Commonwealth v. Eby, 784 A.2d 204, 206 n.2 (Pa.Super. 2001), in

turn citing Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987). Appellant has complied with this requirement. (Appellant’s

brief at 8.)

               This Court may reach the merits of an appeal
               challenging the discretionary aspects of a sentence
               only if it appears that a substantial question exists as
               to whether the sentence imposed is not appropriate
               under the Sentencing Code. “A substantial question
               will be found where the defendant advances a
               colorable argument that the sentence imposed is
               either inconsistent with a specific provision of the
               code or is contrary to the fundamental norms which
               underlie the sentencing process. A claim that the
               sentencing court imposed an unreasonable sentence
               by sentencing outside the guideline ranges presents
               a ‘substantial question’ for our review.”



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Griffin, supra, quoting Eby, supra.

            The matter of sentencing is vested within the sound
            discretion of the trial court; we only reverse the
            court’s determination upon an abuse of discretion.
            To demonstrate that the trial court has abused its
            discretion, the appellant must establish, by reference
            to the record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or
            arrived at a manifestly unreasonable decision.
            Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
            trial court must disclose, on the record, its reasons
            for imposing the sentence.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)

(citations and internal quotation marks omitted).      “[T]he sentencing judge

must state of record the factual basis and specific reasons which compelled

him or her to deviate from the guideline ranges. When evaluating a claim of

this type, it is necessary to remember that the sentencing guidelines are

advisory only.” Griffin, supra at 8, citing Eby, supra.

      Here, appellant received an aggravated range sentence of 3-10 years’

incarceration. The trial court explained at sentencing that appellant failed to

appreciate the seriousness of his conduct or take responsibility for his crime.

(Trial court opinion, 1/5/15 at 4.) Appellant was only interested in himself

and did not demonstrate any empathy towards the victim. (Id.) Appellant

characterized the victim as “a drug dealer and somebody robbed him.”

(Notes of testimony, 10/16/14 at 26.)      Appellant sought to minimize the

incident, remarking that, “It was against the law. But I feel like it is worse

than what it really was, you know.”     (Id. at 27.)    Appellant continued to


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deny his involvement, allowing only that, “I did know about it.” (Id. at 26.)

Appellant focused on himself and his punishment, lamenting that,

              being in jail has not helped me at all, it is not helping
              my family. And I understand that there is a justice
              system and, you know, there is [sic] rules, you
              know, but I feel like I have changed a lot and I feel
              like my family deserves to have me there and my
              son deserves to have me there.

Id. at 25.

      In addition, the alleged robbery involved the use of a firearm which

was discharged.      (Trial court opinion, 1/5/15 at 4.)          As the trial court

remarked, appellant is fortunate that no one was injured. (Id.) Finally, the

trial court considered the information contained in the pre-sentence

investigation report. (Id.) “Where the sentencing judge had the benefit of

a pre-sentence report, it will be presumed that he was aware of relevant

information      regarding    appellant’s     character     and    weighed      those

considerations      along     with    the      mitigating    statutory       factors.”

Commonwealth v. Fullin, 892 A.2d 843, 849-850 (Pa.Super. 2006),

quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001).                     The

trial court placed sufficient reasons on the record justifying an aggravated

range sentence. Appellant’s discretionary aspects of sentencing claim fails.1




1
  Appellant argues that the trial court mistakenly stated the firearm was
discharged three times, when the testimony indicated the firearm was
discharged only once. (Appellant’s brief at 10.) However, this apparent
discrepancy did not appear to be crucial to the trial court’s disposition.


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     Next, appellant argues that the jury’s verdict was against the weight of

the evidence.   Appellant argues that the victim, Tyler Smith (“Smith”),

lacked credibility as a drug dealer and was not able to identify appellant.

(Appellant’s brief at 13.)   Appellant also states that his co-conspirator,

Lauren Caroluzzi (“Caroluzzi”), agreed to an open plea to third-degree

robbery in exchange for her testimony against appellant.      (Id.)   Appellant

paints Caroluzzi as a biased witness with a motive to lie. Caroluzzi admitted

that the robbery was her idea. (Id.) Appellant testified on his own behalf

and denied any participation in the robbery.

                 A weight of the evidence claim concedes
                 that the evidence is sufficient to sustain
                 the verdict, but seeks a new trial on the
                 ground that the evidence was so
                 one-sided or so weighted in favor of
                 acquittal that a guilty verdict shocks
                 one’s sense of justice.

           Commonwealth v. Lyons,              Pa.    , 79 A.3d
           1053, 1067 (2013).

                 The     Pennsylvania  Supreme     Court    has
           reiterated the proper standard of review of a weight
           claim as follows:

                 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. 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. Rather,
                 “the role of the trial judge is to
                 determine that ‘notwithstanding all the
                 facts, certain facts are so clearly of


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               greater weight that to ignore them or to
               give them equal weight with all the facts
               is to deny justice.’” 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.”

               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.
                    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.




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                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.

          Commonwealth v. Clay,                Pa.     , 64 A.3d
          1049, 1054–1055 (2013)             (citations omitted)
          (emphasis in original).

Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014).

     Caroluzzi testified that on December 25, 2012, Christmas Day,

appellant invited her to his grandmother’s house for Christmas dinner.


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(Notes of testimony, 6/16/14 at 56.)    Caroluzzi and appellant were close

friends and had known each other for three or four years. (Id. at 57-58.)

After dinner, appellant confided to Caroluzzi that he owed someone money

who was “going to come after him.”          (Id. at 58.)   Caroluzzi suggested

robbing a drug dealer of a quarter pound of marijuana and then selling the

drugs for a profit. (Id.) Appellant readily agreed, without hesitation. (Id.

at 58-59.)

     Caroluzzi called a friend of hers, Smith, and asked if he would be able

to sell her a quarter pound of marijuana. (Id. at 59.) Caroluzzi chose Smith

because he is of small stature and she knew he would agree to do it. (Id. at

59-60.) Smith picked Caroluzzi up in his car and they drove to appellant’s

cousin’s house, where the transaction was to take place.          (Id. at 62.)

Caroluzzi testified that they did not discuss using a gun; she told appellant

that Smith was “a little kid” and he would be able to physically overpower

him and take the marijuana. (Id. at 63.)

     When they arrived and exited the vehicle, appellant came out of the

bushes with a shotgun. (Id. at 67.) Caroluzzi testified that appellant fired

the shotgun and took the marijuana, as well as Smith’s car keys, and ran.

(Id.) Caroluzzi could not see where appellant was pointing the gun when he

fired, but as far as she could tell, he was not pointing it at Smith. (Id. at

67-68.) Caroluzzi and appellant ran to a friend’s house where they smoked

marijuana. (Id. at 68.) When Caroluzzi asked appellant why he brought the



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gun, appellant replied that it was the only way to frighten Smith into giving

up the marijuana.      (Id. at 69.)      Later, when Caroluzzi’s stepmother

confronted appellant about the incident, appellant was crying and saying he

was sorry. (Id. at 142.)

      Smith testified that he agreed to sell Caroluzzi a quarter pound of

marijuana for $1,400. (Id. at 84-85.) As they were walking into the yard,

he heard a gunshot and fell, but could not see the gunman. (Id. at 89.) A

male individual came up from behind and told him to give up the bag of

marijuana. (Id. at 90-91.) They then took the bag and left. (Id. at 92.)

Leigh-Ann Kelly, an area resident, testified that in the early morning hours of

December 26, 2012, she heard a single gunshot. (Id. at 51-52.)

      Clearly, as the trial court states, the jury was free to reject appellant’s

version of events and credit the testimony of Caroluzzi and Smith.         (Trial

court opinion, 1/5/15 at 5.) Caroluzzi testified that appellant readily agreed

to the robbery and was, in fact, the man with the shotgun. Issues regarding

bias and credibility, including the fact that additional charges against

Caroluzzi were withdrawn in exchange for her truthful testimony, were for

the jury. The trial court did not abuse its discretion in rejecting appellant’s

weight of the evidence claim.

      Finally, appellant challenges the sufficiency of the evidence to support

the jury’s verdict. Appellant argues that Caroluzzi’s testimony was tainted

and that the jury clearly did not find her wholly credible, as evidenced by



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their not guilty verdict on the robbery charge.        (Appellant’s brief at 14.)

Appellant also claims that Caroluzzi’s testimony was contradicted by one of

his witnesses. (Id.)

        In his Rule 1925(b) statement, appellant frames the issue as:

             The Honorable Court was in error when it ruled
             against the Defendant’s Motion for Judgment of
             Acquittal where the Defendant submits that the
             Commonwealth failed to present sufficient evidence
             for the trier of fact to find to find [sic] the Defendant
             guilty of the crimes charged and because the
             evidence failed to establish each material element of
             the crimes charged and the commission thereof by
             the Defendant beyond a reasonable doubt.

Docket #44.      Appellant’s post-sentence motion was similarly boilerplate.

Appellant does not specify which particular elements of the offense were not

met. Appellant does not state how or why the evidence was insufficient.

             In Commonwealth v. Williams, 959 A.2d 1252,
             1257 (Pa.Super. 2008), this Court stated, “[i]f
             Appellant wants to preserve a claim that the
             evidence was insufficient, then the 1925(b)
             statement needs to specify the element or elements
             upon which the evidence was insufficient. This Court
             can then analyze the element or elements on
             appeal.”

Commonwealth v. Manley, 985 A.2d 256, 261-262 (Pa.Super. 2009),

appeal denied, 996 A.2d 491 (Pa. 2010).               “As this Court stated in

Williams, the 1925(b) statement is required to determine ‘[w]hich elements

of which offense[s] were unproven?             What part of the case did the

Commonwealth not prove?’”        Id. at 262, quoting Williams, 959 A.2d at

1257.


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      Appellant’s   boilerplate   Rule    1925(b)   statement   is   manifestly

inadequate to preserve the issue.        Furthermore, the arguments appellant

makes now, that Caroluzzi was not credible and that her testimony conflicted

with that of another witness, really go to the weight of the evidence, not its

sufficiency.2 We agree with the trial court that viewing the evidence in the

light most favorable to the Commonwealth, as verdict winner, it was

sufficient to establish each element of the crime of conspiracy to commit

robbery. (Trial court opinion, 1/5/15 at 7.)

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/23/2015




2
            The law is well settled that a sufficiency argument
            that is founded upon a mere disagreement with the
            credibility determinations made by the fact finder, or
            discrepancies in the accounts of the witnesses, does
            not warrant the grant of appellate relief, for [i]t is
            within the province of the fact finder to determine
            the weight to be accorded each witness’s testimony
            and to believe all, part, or none of the evidence
            introduced at trial.

Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa.Super. 2006), appeal
denied, 923 A.2d 1173 (Pa. 2007) (quotation marks and citations omitted).
“Moreover, a verdict may be predicated upon the uncorroborated testimony


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of an accomplice.” Commonwealth v. Mikell, 729 A.2d 566, 570 (Pa.
1999) (citation omitted).


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