J-S23020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM PLUMMER

                            Appellant                 No. 1424 EDA 2015


             Appeal from the Judgment of Sentence April 27, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003689-2014
                            CP-51-CR-0003690-2014
                            CP-51-CR-0015155-2013


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 FILED JUNE 16, 2016.

        William Plummer appeals from the judgment of sentence imposed on

April 27, 2015, in the Court of Common Pleas of Philadelphia County,

following his conviction by jury on charges of robbery, robbery of a motor

vehicle, aggravated assault (two counts), arson, risking a catastrophe,

conspiracy (two counts), intimidation of a witness or victim, retaliation

against a witness of victim and contraband.1,2           Plummer received an

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  The charges were originally listed on three separate criminal complaints as
reflected in the caption. All complaints were consolidated, without objection.
2
 18 Pa.C.S. §§ 3701(a)(1)(ii), 3702(a), 2702(a)(1), 3301(a)(1)(i), 3302(b),
903(c), 4952, 4953 and 5123, respectively.
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aggregate sentence of 20-40 years’ incarceration.        In this timely appeal,

Plummer claims there was insufficient evidence to support his convictions on

the charges related to the arson; intimidation and retaliation; and robbery of

a motor vehicle. After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

       The facts as related by the trial court in its Pa.R.A.P. 1925(a) opinion

are supported by the record.

       On September 29, 2013, at around 1:00 a.m., Ronald Elliot left
       his girlfriend, Kandis Fowler’s, home at 3601 Conshohocken
       Avenue and went to the apartment building’s parking lot.
       [Plummer] and two other men, holding fake police badges,
       jumped out of the bushes and yelled “Freeze, Police.” Elliot ran
       out of the parking lot and across the street as the three men
       chased him. [Plummer] stopped pursuing Elliot and acted as a
       lookout standing on the sidewalk on the parking lot side of the
       street while the other two men caught Elliot across the street.
       After the two men hit Elliot four or five times in the head with a
       firearm, cutting him on the head, the two men took Elliot’s
       watch, money and car keys. The men joined back up with
       [Plummer] and all three men ran to the parking lot. Elliot saw
       [Plummer] drive off in Fowler’s Ford Expedition.

       On February 5, 2014, after [Plummer] had been arrested and
       charged with robbery of Elliot, Elliot received multiple phone calls
       from [Plummer]. [Plummer] threatened Elliot, explaining that if
       Elliot attended the next court date [Plummer] was going to
       firebomb the homes of Elliot’s mother, girlfriend, and
       grandparent and kill Elliot.[3] On February 9, 2014, Elliot went to
       Fowler’s parent’s house located on Washington Lane, where Elliot
       observed that there had been a small fire in the back yard of the
       house.
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3
 Elliot also testified Plummer threatened his girlfriend’s parents’ home. See
N.T. Trial, 2/10/2015 at 88.



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     On February 9[,] 2014, Valerie and Russell Fowler, Kandis
     Fowler’s parents, were living in a row home on Washington Lane.
     At about 4:00 a.m., Valerie Fowler heard a “bang” and smelled
     smoke. Russell Fowler went downstairs and saw a small fire in
     the back yard. After the fire was extinguished, Russell Fowler
     noted that the first floor back window was broken and saw a
     bottle with a wick in it in the back yard.

     Detective Timothy Brooks of the Philadelphia Police’s Bomb
     Disposal Unit and an expert in arson explosives arrived at the
     Fowler’s home on Washington Lane shortly after the fire was
     extinguished. Outside the back of the house, Detective Brooks
     observed two bottles with wicks in them, one intact and the
     other shattered, which he believed to be Molotov cocktails.
     Detective Brooks observed strike marks on the back window and
     a broken bottle at the bottom of the basement steps that
     indicated that a Molotov cocktail had struck the house and fallen
     to the ground. The intact bottle contained liquid and a cloth
     wick, which smelled of gasoline. Detective Brooks recovered the
     bottles, wicks, and liquid.

     On February 9, 2014, Detective Kevin Sloan requested that
     Philadelphia prison authorities search [Plummer’s cell]. The
     prison authorities recovered a cell phone in [Plummer’s] cell.
     According to Cricket Communications’ records, the cell phone
     recovered from [Plummer’s] cell had been used to call Elliot four
     times on February 5, 2014.

     [Plummer] testified on his own behalf. [Plummer] asserted that
     in the first week of September 2013, Elliot gave [Plummer]
     $15,000 to purchase drugs for him. [Plummer] kept the money
     but did not purchase the drugs. [Plummer] asserted that on
     September 29, 2013, he was not on Conshohocken Avenue but
     instead was in Norristown. [Plummer] explained that he was
     unable to run because he was shot many years before.
     [Plummer] admitted that he had called Elliot but claimed the call
     was to arrange to return Elliot’s money in exchange for Elliot not
     appearing at trial.

Trial Court Opinion, 6/4/2015, at 2-4 (citations to notes of testimony and

footnote omitted).




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     The standard of review for claims of insufficient evidence is both well

settled and oft repeated:

     With respect to such claims, we consider the evidence in the
     light most favorable to the Commonwealth as verdict winner.
     Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
     2005). In that light, we decide if the evidence and all reasonable
     inferences from that evidence are sufficient to establish the
     elements of the offense beyond a reasonable doubt. Id. We keep
     in mind that it was for the trier of fact to determine the weight of
     the evidence and the credibility of witnesses. Id. The jury was
     free to believe all, part or none of the evidence. Id. This Court
     may not weigh the evidence or substitute its judgment or that of
     the factfinder. Id.

Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015).

     Additionally, we note:

     Admittedly, guilt must be based on facts and conditions proved,
     and not on suspicion or surmise. See Commonwealth v.
     Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173 (1994). Entirely
     circumstantial evidence is sufficient so long as the combination
     of the evidence links the accused to the crime beyond a
     reasonable doubt. See id.; see also Commonwealth v.
     Chmiel, 536 Pa. 244, 247, 639 A.2d 9, 11 (1994). 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. See Commonwealth v. DiStefano, 782 A.2d
     574, 582 (Pa. Super. 2001), appeal denied, 569 Pa. 716, 806
     A.2d 858 (2002).

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011).

     In his first claim, Plummer argues there was insufficient evidence to

support his convictions on the charges associated with the firebombing of

the Fowler residence.       Essentially, Plummer claims that the person or

persons who threw the two Molotov cocktails were never identified, Plummer


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was incarcerated at the time, and there is no evidence linking him to the

unknown perpetrators.       Therefore, he posits he should not have been

convicted of aggravated assault, arson, conspiracy, and risking catastrophe.

We disagree.

        We begin by noting that Plummer is not arguing that the crimes

themselves did not occur, but that there is insufficient evidence to

demonstrate he was a participant in the criminal activity.         Here, the trial

court heard evidence that Plummer called Elliot while he was incarcerated

and threatened to firebomb a number of people, including the Fowlers, if

Elliot persisted in prosecuting the robbery charges against him. Mere days

after   the   threatening   phone   calls,   the   Fowlers’ home   was, indeed,

firebombed.     The jury, examining the totality of the circumstances, was

allowed to infer that the threat of firebombing the Fowlers and act of

firebombing the Fowlers were not the product of random circumstance.

Although the identity of the person who threw the incendiary devices was

never determined, the jury, again, was allowed to infer from the evidence

presented that Plummer engaged in a conspiracy to carry out his threats.

“Circumstantial evidence may provide proof of [a] conspiracy. The conduct

of the parties and the circumstances surrounding such conduct may create a

web of evidence linking the accused to the alleged conspiracy beyond a

reasonable doubt.”     Commonwealth v. Jaquez, 113 A.3d 834, 840 (Pa.

Super. 2015) (citation omitted). The evidence presented was not “so weak

and inconclusive that as a matter of law no probability of fact may be drawn

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from the combined circumstances.”         See Moreno, supra.     Accordingly,

there is sufficient evidence to support Plummer’s convictions of conspiracy

and the remaining charges attendant to the firebombing of the Fowlers’

residence.

      Next, Plummer argues there was insufficient evidence to support his

convictions on the charges of witness intimidation and retaliation.     These

arguments are woefully undeveloped. Plummer simply argues there was no

corroborating evidence to support Elliot’s version of the phone calls and that

Plummer testified he called Elliot to try to work out repayment of the

$15,000 Elliot had given him to purchase drugs. This argument challenges

the credibility of the witnesses and as such is an argument regarding the

weight of the evidence. See Commonwealth v. Griffin, 64 A.3d 932, 939

(Pa. Super. 2013) (argument against the credibility of witnesses’ testimony

attacks the weight of the evidence, not sufficiency.)     However, Plummer

never challenged the weight of the evidence before the trial court.

Accordingly, any such a claim is waived. See Commonwealth v. Priest,

18 A.3d 1235 (Pa. Super. 2011) (weight of evidence claim waived for failure

to present claim in the lower court).

      Regarding retaliation, Plummer refers to his argument in the first

issue, claiming the Commonwealth failed to prove a link between him and

the firebombing. We need not repeat our analysis to demonstrate the fallacy

of this claim.


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      Finally, Plummer argues his conviction for robbery of a motor vehicle

should be set aside for insufficient evidence because the Commonwealth

failed to prove the vehicle was taken while in the presence of Elliot.

Essentially, Plummer argues that Elliot was across the street from the

parking lot when Plummer took Kandis Fowler’s car, and therefore, the car

was not taken in Elliot’s presence.

      Robbery of a motor vehicle is statutorily defined as follows: “A person

commits a felony of the first degree if he steals or takes a motor vehicle

from another person in the presence of that person or any other person in

lawful possession of the motor vehicle.” 18 Pa.C.S. § 3702(a). “Presence”

is not statutorily defined. However, case law demonstrates that “presence”

is satisfied when the victim is in the kitchen of her house when her car keys

were taken from her and the car was subsequently taken from “just outside

the door.”    Commonwealth v. Bonner, 27 A.3d 255, 256 (Pa. Super.

2011). Accordingly, “presence” does not require the victim and vehicle be in

immediate proximity.

      Here, the record reflects that as Elliot approached the vehicle in

question, Plummer and two other men jumped out from behind some nearby

bushes and confronted Elliot. The men then chased Elliot across the street

before they were able to catch him and take the car keys from him. Elliot

was near enough to the vehicle to see Plummer get into it and drive it away.




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Essentially, Plummer is asking to be rewarded for having chased the victim

away from the vehicle. We will not do so.

       The crime began when Elliot was approaching the vehicle and was

completed mere moments later, while Elliot was across the street. The only

reason Elliot was not in the immediate proximity of the vehicle when it was

taken was his attempt to escape the criminals. Under the undisputed facts

of this matter, we find that as a matter of law, the car was stolen in Elliot’s

presence.4 Accordingly, Plummer is not entitled to relief on this issue.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




____________________________________________


4
  Plummer asks this Court to conduct a “distance analysis”, see Appellant’s
Brief at 26-27, to determine presence. We are unconvinced that such a
specific analysis is currently necessary. Moreover, we do not believe the
facts of this matter lend themselves to such line drawing.



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