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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STEVEN GLENN AHNER :
:
Appellant : No. 547 MDA 2018
Appeal from the Judgment of Sentence November 2, 2017
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001510-2017
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY LAZARUS, J.: FILED: MARCH 25, 2019
Steven Glenn Ahner appeals from the judgment of sentence, entered in
the Court of Common Pleas of Berks County, following his convictions for
robbery,1 burglary,2 terroristic threats,3 possession of instruments of crime
(“PIC”)4 and related convictions.5 On appeal, Ahner challenges the sufficiency
of the evidence, the weight of the evidence, the jury’s application of the
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1 18 Pa.C.S.A. § 3701(a)(1)(ii).
2 18 Pa.C.S.A. § 3502(a)(1)(i).
3 18 Pa.C.S.A. § 2706(a)(1).
4 18 Pa.C.S.A. § 907(a).
5 The following convictions merged for purposes of sentencing: criminal
trespass, theft by unlawful taking, recklessly endangering another person
(“REAP”), simple assault, and harassment.
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reasonable doubt standard, and the discretionary aspects of his sentence.
After careful review, we affirm.
At approximately 10:00 p.m. on February 4, 2017, Debra Seip answered
her front door. She was confronted by an unknown man, clad in black and
carrying a gun. The intruder forced Seip to call for her granddaughter, Amber
Smith, who came down from the second floor. Smith saw the intruder next
to her grandmother wearing head-to-toe dark clothing, with his face concealed
by a bandana and a beanie-style hat, holding a revolver in a gloved hand.
When the intruder demanded money, Seip stalled, faking an asthma attack so
she could relocate to a chair near a phone the intruder had not noticed. Seip
then argued with the intruder over his demands, ultimately turning over
approximately $200 in a bank envelope. Unsatisfied, the intruder made clear
he knew Seip had considerably more money upstairs in a safe. Seip, in fact,
had inherited a sizeable sum from her mother and kept it upstairs in a hotel
safe. Smith led the intruder upstairs to the middle bedroom, where he opened
the closet, found two safes—one containing cash, and the other, financial
documents—and took both.
The moment Smith and the intruder reached the second floor, Seip
surreptitiously called 911. Meanwhile, the intruder spent five to ten minutes
trying to locate keys for the safes before giving up and taking the safes
themselves. Smith’s two small dogs further delayed the intruder when he
came back downstairs by jumping on him until he dropped the safes. After
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collecting the safes, he exited the front door, followed closely by Seip. Owing
to Seip’s quick action and the intruder’s delays, the police arrived as the
intruder exited the house. From the front of her house, Seip indicated to
Officer Thenard Caraballo that the intruder ran towards Centre Street, a dimly
lit, nearby alley. Officer Caraballo observed a man walking briskly into the
darkened portion of Centre Street, chased the suspect down, and ordered him
to the ground. Officer Caraballo’s partner quickly arrived on the scene,
handcuffed the suspect, searched his person, and recovered a BB gun. The
officers located the stolen safes under a car approximately 60 feet from where
the suspect was handcuffed. The suspect, later identified as Ahner, was
apprehended with $240 on his person, and wearing a black hooded zip-up
jacket, grey slacks, black sneakers, white batting gloves, a black beanie, and
a bandana around his neck. There were no other individuals on the street
when Ahner was apprehended. The next morning the police recovered a
loaded revolver, fitting the description provided by the victims, approximately
five feet from where Ahner was arrested, but failed to locate the bank
envelope.
On September 27, 2017, following a trial presided over by the Honorable
Patrick T. Barrett, the jury convicted Ahner of robbery (two counts), burglary,
criminal trespass, theft by unlawful taking, terroristic threats, simple assault,
REAP, and PIC. The court also found Ahner guilty of the summary offense of
harassment. On November 2, 2017, Judge Barrett sentenced Ahner to an
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aggregate term of 10 to 30 years’ imprisonment with 5 years’ probation
running concurrently to his sentence of incarceration.6 Ahner filed post-
sentence motions, which the court denied. He subsequently filed a timely
notice of appeal7 and a court-ordered statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Ahner raises the following issues for our review:
1) Whether [the] Commonwealth presented sufficient evidence to
identify [Ahner] as the perpetrator beyond a reasonable doubt.
2) Whether the trial court abused its discretion when it permitted
guilty verdicts that were against the weight of the evidence,
particularly verdicts that were wholly reliant on circumstantial,
inconsistent, vacuous evidence.
3) Whether [Ahner] received a fair and constitutional trial when
the jury displayed reasonable doubt, but then issued guilty
verdicts despite harboring such doubts.
4) Whether the trial court’s sentence of an aggregate ten (10) to
thirty (30) years[’] incarceration with probation was manifestly
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6 Ahner’s sentence is broken down as follows: 4 to 10 years’ imprisonment
for the first count of robbery, with 271 days’ credit for time served; 4 to 10
years’ imprisonment for the second count of robbery to run consecutively to
the first; 2 to 10 years’ imprisonment for burglary to run consecutively to the
second robbery conviction; 5 years’ probation for terroristic threats and PIC,
both set to run concurrently to his sentence of incarceration. Ahner’s
remaining convictions merged for purposes of sentencing.
7 The clerk of courts initially failed to serve upon Ahner or his attorney Judge
Barrett’s February 2, 2018 order denying Ahner’s post-sentence motion or
enter the order on the docket. On March 5, 2018, the court became aware
the order had not been served. On March 6, the clerk of courts entered the
order and served it pursuant to Pa.R.Crim.P. 114, making Ahner’s March 27,
2018 notice of appeal timely filed. See Pa.R.A.P. 108 (computing time period
under Pennsylvania Rules of Appellate Procedure from date clerk of courts
serves notice to parties).
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unjust and unreasonable, considering [Ahner] had no prior
criminal record, was a functional member of society, and was
a struggling addict.
Brief of Appellant, at 14–15.
Appellant attacks the sufficiency of the evidence underpinning his
convictions on identical grounds, alleging the Commonwealth presented
insufficient evidence to identify him, beyond a reasonable doubt, as the
intruder who entered Seip’s home.
We review claims regarding the sufficiency of the evidence by
considering 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. Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—
while passing on the credibility of the witnesses and the weight of
the evidence—is free to believe all, part, or none of the evidence.
In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.
Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)
(citations and quotations omitted).
In addition to furnishing the finder of fact with sufficient evidence to
prove every element of each crime beyond a reasonable doubt, the
Commonwealth is obligated to establish, beyond a reasonable doubt, the
identity of the defendant as the individual who perpetrated the crimes. Id.
Although challenges to identity generally speak to the weight of the evidence,
a narrow class of claims give rise to a valid sufficiency challenge.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc). A
conviction rests on insufficient evidence if the defendant was identified as the
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perpetrator solely based on common items of clothing or general physical
characteristics. See Commonwealth v. Crews, 260 A.2d 771, 771–72 (Pa.
1970) (overturning conviction where only evidence tying appellant to crime
was description of perpetrator’s complexion and gold-colored sweater).
However, clothing and physical characteristics can be used in tandem with
other circumstances to validly establish the identity of a perpetrator. See
Orr, 38 A.3d at 874–75 (finding combination of circumstantial factors
sufficient to identify appellant as perpetrator). In the presence of additional
evidentiary circumstances, “any indefiniteness and uncertainty in the
identification testimony goes to its weight.” Id. at 874 (citation omitted).
Ahner contends there was insufficient evidence to identify him as the
perpetrator beyond a reasonable doubt because the victims’ descriptions were
too generalized to identify anyone in particular as the perpetrator without
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further corroborating evidence.8 Though his argument is cognizable as a
sufficiency claim, Ahner is due no relief.9 Id.
The Commonwealth presented the following evidence at trial: (1) Seip’s
description of the intruder as wearing dark clothing covering his face except
for his eyes and holding a revolver, to whom she turned over approximately
$200, N.T. Trial, 9/25/17, at 42–46; (2) Smith’s description of the intruder as
an unknown individual wearing a dark beanie and bandana on his head, a dark
hooded sweatshirt, dark jeans, white and black gloves on his hands, and
carrying a revolver, id. at 90–95; (3) Seip’s testimony that she “immediately
followed [the intruder] out the door” watched him turn onto Centre Street,
and saw the police were already there, id. at 49-50; (4) Officer Caraballo’s
testimony that Seip directed him to Centre Street, where he apprehended
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8 Ahner also offers the following to distinguish himself from the perpetrator of
the crime: (1) the Commonwealth failed to confirm Ahner’s identity as the
perpetrator through a “voice line-up;” (2) the victims failed to visually identify
Ahner as the perpetrator; (3) Ahner’s proximity to the crime scene was
insufficient to implicate him in the crimes; and (4) the Commonwealth offered
no evidence to explain how Ahner knew of the existence of Seip’s safes or
their contents. Brief of Appellant, at 35–43. None of these arguments is
properly developed; therefore, all are waived. See Commonwealth v.
Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006) (finding appellant’s
claims waived under Pa.R.A.P. 2119(a) because of failure to develop
meaningful argument with specific references to relevant case law).
9 Though most challenges to identity speak to the weight of the evidence, the
trial court incorrectly contended all such challenges do so, and consequently,
failed to evaluate the validity of Ahner’s sufficiency challenge. See Pa.R.A.P.
1925(a) Opinion, at 3; and Orr, 38 A.3d at 874–75.
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Ahner, the only individual on Centre Street, and found the stolen safes nearby,
N.T. Trial, 9/26/17, at 187–90; and (5) Detective Jones’ testimony detailing
Ahner’s clothing at the time of arrest as a black, hooded, zip-up jacket, white
batting gloves, gray slacks, black sneakers, a black beanie, and a bandana
around his neck, stating Ahner had $240 on his person, and attesting to
subsequently locating a revolver five feet from where Ahner was apprehended,
id., at 278–79, 303, 310.
Taken together, this evidence offers an unbroken chain linking Ahner to
the crimes committed. Notwithstanding the absence of either victim
identifying Ahner as the perpetrator at trial, our review of the entire record,
with due consideration accorded to the circumstantial evidence in the light
most favorable to the Commonwealth, confirms there was sufficient evidence
to sustain Ahner’s convictions. Compare Crews, supra (holding evidence
insufficient to convict appellant where only identification evidence linking
appellant to crime was description of perpetrator as black male with light
complexion wearing gold sweater in light of number of people who fit that
general physical description and common nature of gold sweater) with Orr,
38 A.3d at 874 (finding evidence sufficient where police stopped individual
matching victim’s description of perpetrator as having “a red beard, light
complexion, and wearing a camouflage-patterned hooded jacket and grey
pants” within five blocks of the crime scene and twenty-five minutes of crime,
in location consistent with where victim saw perpetrator flee after robbery).
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Next, Ahner avers the verdict rendered was against the weight of the
evidence. Specifically, he contends the Commonwealth failed to explain
Ahner’s familiarity with the specifics of the victims’ home, discrepancies
between the victims’ testimony and Ahner’s appearance, the delay in locating
the revolver, the absence of Seip’s bank envelope, or the location from which
the stolen safes were recovered in contrast to with where Ahner was
apprehended. Again, Ahner is due no relief.
When challenging the weight of the evidence, relief in the form of a new
trial may be granted only where the verdict shocks one’s sense of justice.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). Where the
trial court has ruled on a weight claim, our review is limited to determining
whether the trial court “palpably abused its discretion in ruling on the weight
claim.” Id. It is not our role, as a reviewing court, to reweigh the evidence
and substitute our judgment for that of the fact-finder. Commonwealth v.
Mitchell, 902 A.2d 430, 449 (Pa. 2006).
The trial court considered Ahner’s weight of the evidence claim in his
post-sentence motion and concluded it lacked merit. Pa.R.A.P 1925(a)
Opinion, 7/20/18, at 5–8. Here, the jury determined Ahner—who was
apprehended only feet from the scene of the crime, wearing distinctive
clothing disguising his appearance from head to toe—robbed Seip and Smith.
See Commonwealth v. Hargrave, 745 A.2d 20, 22 (Pa. Super. 2000) (“it is
within the province of the fact-finder to . . . believe all, part, or none of the
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evidence.”). It was purely within the jury’s discretion to find the
Commonwealth’s evidence credible and we will not disturb the verdict on
appeal. In concluding Ahner’s guilty verdicts failed to shock one’s sense of
justice, the trial court did not abuse its discretion.
Next, Ahner claims the jury convicted him despite expressing doubt as
to his guilt, arguing “the jury misinterpreted and misapplied the legal standard
of reasonable doubt.” Brief of Appellant, at 56. He is due no relief.
Ahner supports his argument by pointing to the jury’s questions asking
the court to “explain . . . the degree of circumstantial evidence that can
constitute guilt” and “how you measure reasonable doubt.” N.T. Trial,
9/27/17, at 453, 456. Ostensibly, according to Ahner, these questions
evinced the jury’s doubt as to his guilt.
This assertion, however, is not borne out by the facts or the law. Judge
Barrett responded to the jury’s questions by defining both circumstantial
evidence and reasonable doubt in substantially similar terms to those provided
by the Pennsylvania Suggested Standard Jury Instructions. See id. at 455–
58; see also Pa.S.S.J.I. (Crim.) §§ 7.01, 7.02A (providing, respectively,
standard jury instructions for reasonable doubt and circumstantial evidence).
The jury indicated it found Judge Barrett’s instructions helpful. N.T. Trial,
9/27/17, at 458 (“The Court: Help? The Foreman: Yes.”). Under the law, the
jury is presumed to follow the instructions of the court. Commonwealth v.
Spotz, 896 A.2d 1191, 1224 (Pa. 2006); see also Commonwealth v.
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O’Hannon, 723 A.2d 1193, 1196 (Pa. 1999) (“Absent evidence to the
contrary, the jury is presumed to have followed the trial court’s instructions.”).
Nothing in the trial court’s conduct served to jeopardize the proper legal
foundation upon which Ahner’s convictions rest.
In his final argument, Ahner contends the trial court failed to
appropriately consider mitigating factors when imposing consecutive
sentences—a claim that challenges the discretionary aspects of sentencing.
Commonwealth v. Rhoades, 8 A.3d 912, 918–19 (Pa. Super. 2010). Unlike
a challenge to the legality of sentence, there is no absolute right to appellate
review of the discretionary aspects of sentencing. Rather, a party who desires
to raise such matters must, inter alia, petition this Court for permission to
appeal and demonstrate that there is a substantial question as to whether the
sentence is appropriate. 42 Pa.C.S.A. § 9781(b). To fulfill this requirement,
the party seeking to appeal must “set forth in a separate section of [his or
her] brief a concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspect of sentence.” Pa.R.A.P.
2119(f). The statement “shall immediately precede the argument on the
merits.” Id.
Instantly, Ahner has failed to comply with Rule 2119(f) by not including
any statement setting forth the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of his sentence. While the omission
of a Rule 2119(f) statement does not automatically preclude review of his
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claim, where, as here, the Commonwealth objects to its omission, “we may
not reach the merits of [the] claim[.]” Commonwealth v. Hudson, 820 A.2d
721 (Pa. Super. 2003), citing Commonwealth v. Farmer, 758 A.2d 173 (Pa.
Super. 2000). Accordingly, we find Ahner’s claim waived. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/25/2019
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