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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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