J-S87034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN WILLIAMS
Appellant No. 2282 MDA 2015
Appeal from the Judgment of Sentence July 8, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001688-2012
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 29, 2016
Kevin Williams appeals from the judgment of sentence, entered in the
Court of Common Pleas of Luzerne County, following his conviction of
robbery,1 conspiracy to commit robbery,2 criminal trespass,3 theft by
unlawful taking,4 receiving stolen property,5 and conspiracy to commit theft
by unlawful taking.6 After our review, we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 3503(a)(1)(i).
4
18 Pa.C.S. § 391(a).
5
18 Pa.C.S. § 3925(a).
(Footnote Continued Next Page)
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Williams and his co-conspirator, William Gronosky, entered the
Carousel Lounge at 9:00 a.m. on March 15, 2012 and robbed the owner, at
gunpoint, of $3,000.00. Co-conspirator Courtney Sadusky drove Williams
and Gronosky to the Carousel Lounge, and, after the robbery, she drove
them to her parents’ home in Bear Creek. Ultimately, Sadusky gave a
statement implicating Williams and Gronosky.
At trial, before a jury, Jules Greenberg, the owner of the Carousel
Lounge, testified that on March 15, 2012, at approximately 9:15 a.m., he
was working in his office at the Carousel Lounge when two individuals
rushed in, pushed him over his office chair, and knocked him to the ground.
Each was wearing a hoodie and gloves, and had his face covered with a
black ski mask. Additionally, each was armed with a large black gun.
Because he saw one of the robber’s wrists, Greenberg was able to tell police
that one of the attackers was black.
Greenberg testified that the two individuals cleaned out two of the
business’ safes, containing about $3,000.00, and they took his keys, money
and cell phone. Both Greenberg and Sadusky testified against Williams.
Sadusky, the Commonwealth’s key witness, testified that she picked up both
Williams and Gronosky at Williams’ residence. When they arrived at the
Carousel Lounge, she pulled her vehicle behind the business. She testified
_______________________
(Footnote Continued)
6
18 Pa.C.S. § 903.
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that when they left the car, Williams and Gronosky went down an
embankment into the Carousel Lounge. She saw them exit the lounge with
their pockets stuffed and things hanging from their waists. She drove them
to her mother and stepfather’s house, in Bear Creek, where they went
through the money and other items. Sadusky was paid $85 to drive. She
then drove the two to the Wyoming Valley Mall, but the guns, gloves and the
bank bag taken from the lounge and the bag where the items were placed
were left in Sadusky’s car. Although Williams and Gronosky had told her to
get rid of the items, Sadusky kept them in her closet in the home she shared
with her biological father. Sadusky then returned to the Wyoming Valley
Mall, picked up Williams and Gronosky, and brought them back to Williams’
residence.
The jury convicted Williams of all charges, and the court sentenced
Williams to an aggregate term of 10 to 20 years’ imprisonment. Williams
filed post-sentence motions, which the trial denied on August 29, 2013. On
direct appeal, this Court affirmed, finding Williams had failed to preserve any
issues for appellate review. Commonwealth v. Williams, 1795 MDA 2013,
filed August 26, 2014 (unpublished decision). On April 17, 2015, Williams
filed a motion for post-conviction relief under the Post-Conviction Relief Act,
42 Pa.C.S.A. §§ 9741-46 (“PCRA”). The PCRA court granted relief,
reinstating Williams’ appellate rights nunc pro tunc, and Williams filed a
Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial
court filed a Rule 1925(a) opinion.
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On appeal, Williams raises three issues:
1. Was the evidence at trial, even when viewed in a
light most favorable to the Commonwealth,
insufficient as a matter of law to establish [Williams’]
guilt beyond a reasonable doubt with respect to all
offenses, counts 1-6, where the Commonwealth
failed to establish that [Williams] engaged in the
alleged conduct or was the perpetrator of each
offense?
2. Was the verdict on all charges, counts 1-6, contrary
to the weight of the evidence presented to support a
finding of guilt beyond a reasonable doubt to
establish that [Williams] engaged in the alleged
conduct or was the perpetrator of each offense?
3. Whether [Williams] received an illegal sentence,
pursuant to 42 Pa.C.S.A. § 9712, in the nature of a
five (5) year mandatory minimum sentenced on
Count 1, robbery, contrary to Alleyne v. U.S., 133
S. Ct. 2151 (2013) and Commonwealth v.
Newman, 99 A.3d 83 (Pa. Super. 2014) and their
progeny?
Appellant’s Brief, at 4.
With respect to Williams’ sufficiency claim, our standard of review is
well-settled: whether, viewed in the light most favorable to the
Commonwealth as verdict winner, the evidence at trial was sufficient to
enable the fact-finder to find every element of the crime beyond a
reasonable doubt. Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.
Super. 2015). This Court may not re-weigh the evidence and substitute our
judgment for the fact-finder. In addition, the facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence. Id. “Any doubts regarding a defendant’s guilt may be resolved
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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.” Id. (citation omitted). Further, the Commonwealth may
sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence. Id. The trier
of fact is free to believe all, part, or none of the evidence adduced at trial.
Commonwealth v. Fahy, 516 A.2d 689 (Pa. 1986).
Here, the evidence presented at trial, in particular the testimony of
Sadusky and Greenberg, established that Williams, in the course of
committing a theft, threatened another with or intentionally put that person
in fear of immediate serious bodily injury. 18 Pa.C.S. § 3701(a)(1)(ii).
Citing inconsistencies in testimony, Williams argues that the Commonwealth
did not prove Williams was the perpetrator. Williams’ argument conflates
weight and sufficiency; the premise of his argument is that Sadusky’s and
Greenberg’s testimony is not credible. He points to minor discrepancies in
both Sadusky’s and Greenberg’s testimony with respect to the duration of
the robbery and the description of the gloves the perpetrators were wearing
during the robbery. It is only when contradictory evidence is substantial and
goes to a material issue, tending “to undermine the integrity of the verdict
that the court, feeling the pangs of conscience, should intervene to take
from the jury its fact-finding role.” Commonwealth v. Yocum, 418 A.2d
534 (1980). Thus, even uncorroborated testimony of a prosecution witness
may be sufficient to convict if the trier of fact finds the witness credible.
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Fahy, supra. We find the evidence sufficient to support the verdict. This
claim is meritless.7
Next, Williams argues the verdict was against the weight of the
evidence.
An allegation 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. A trial judge must do more
than reassess the credibility of the witnesses and allege that he
would not have assented to the verdict if he were a juror. Trial
judges, in reviewing a claim that the verdict is against the
weight of the evidence, do not sit as the thirteenth juror.
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.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations
and footnote omitted).
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
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7
We note that a challenge to the weight of the evidence concedes that the
evidence was sufficient to sustain the verdict. Commonwealth v. Manley,
985 A.2d 256 (Pa. Super. 2009); Commonwealth v. Davis, 799 A.2d 860,
865 (Pa. Super. 2002).
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verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Id. at 753 (citations omitted).
Here, Williams’ argument again focuses on the inconsistencies between
Sadusky’s and Greenberg’s testimony describing the gloves the perpetrators
were wearing. N.T. Trial, 5/6/13, at 148-49, 155. Williams points to
Sadusky’s statement that she had kept both pairs of gloves in her home, but
only one pair of gloves was found there. Id. at 143, 179-180. He also
points to inconsistencies in Sadusky’s and Greenberg’s testimony as to the
type of gloves worn. Id. at 150-51, 164. Further, Williams assails
Sadusky’s credibility because she pled guilty to reduced charges. Williams
claims that this is reason to question her veracity. We disagree.
The jury was free to resolve any inconsistencies in the
Commonwealth’s favor. See Commonwealth v. Horne, 89 A.3d 277, 286
(Pa. Super. 2014) (appellant could not prevail on weight of the evidence
claim as “the jury resolved the inconsistencies among the testimonies as it
saw fit and reached a verdict.”). The trial court acknowledged “minimal
inconsistent testimony,” but stated that it was “anything but shocked by the
jury’s verdict,” instead finding the evidence “overwhelmingly” established
Williams’ guilt. Trial Court Opinion, 1/13/16, at 5. Other than pointing out
minor inconsistencies in their testimony, Williams has failed to produce any
valid argument suggesting that Greenberg’s and Sadusky’s testimony should
be considered so uncertain as to cause the verdict to shock the court's
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conscience. After our review of the record and the arguments on appeal, we
find no abuse of discretion in the court’s determination that its conscience
was not shocked by the jury’s verdict. Widmer, supra. Accordingly,
Williams’ weight claim does not warrant relief.
Finally, Williams claims his sentence is illegal pursuant to Alleyne,
supra and Newman, supra.8 Williams had a prior record score of 4. The
court imposed a standard-range sentence on the robbery charge, 60 to 120
months’ imprisonment, and a consecutive standard range sentence of 48 to
96 months’ imprisonment on the criminal conspiracy to commit robbery
charge. The court sentenced Williams to a standard-range sentence of 12 to
24 months’ imprisonment on the criminal trespass charge, also to be served
consecutively. The remaining counts, theft, receiving stolen property, and
criminal conspiracy to commit theft, merged with robbery. N.T. Sentencing,
7/8/13, at 6-7. Thus, the court imposed an aggregate standard-range
sentence of 120 to 240 months’ (ten to twenty years) incarceration. As the
court stated, “had [Williams] received a mandatory five-year pursuant to
section 9712(a), his argument would be correct.” Trial Court Opinion,
1/13/16, at 6. However, despite the fact that the Commonwealth stated
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8
In Alleyne, the United States Supreme Court held that a fact that
increases the sentencing floor is an element of the crime and, therefore,
must be submitted to the factfinder and proven beyond a reasonable doubt.
Alleyne v. United States, 570 U.S., 133 (2013). See also Newman,
supra (Pennsylvania Supreme Court declared mandatory minimum
sentencing scheme found in Section 9712.1 unconstitutional in its entirety).
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that it would seek a mandatory five-year minimum on the robbery charge,
N.T. Sentencing, 7/8/13, at 3, the court made no determination that the
mandatory minimum applied, and instead stated that it was imposing
sentence under the standard guideline ranges. Id. at 6-7. Moreover, the
sentencing order and court commitment form indicate no mandatory
minimum term was imposed. Therefore, Alleyne is not implicated, and no
relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
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