J-S80042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH PUGH :
:
Appellant : No. 3624 EDA 2017
Appeal from the Judgment of Sentence October 23, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014211-2014
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JULY 1, 2019
Appellant Keith Pugh appeals from the judgment of sentence entered
after a jury found him guilty of robbery—threat of serious bodily injury.1
Appellant challenges the sufficiency and weight of the evidence. Appellant
also contends that the trial court’s instruction on robbery was deficient, and
that trial counsel was ineffective for failing to object to the instruction. We
affirm.
The trial court summarized the evidence presented at trial as follows:
On August 30, 2014, near Broad and Hunting Park in Philadelphia,
at approximately 2:15 AM[,] . . . Complainant, Robert Mason, had
been biking to his girlfriend’s home when he noticed [Appellant]
had a stick resembling a cigarette in his mouth. . . . Complainant
approached [Appellant] to ask for a cigarette, but [Appellant] did
not have any cigarettes. [Appellant] proceeded to purchase
____________________________________________
1 18 Pa.C.S. § 3701(a)(1)(ii).
J-S80042-18
cigarettes for Complainant from a Chinese restaurant, Golden
City, and then the two returned to [Appellant]’s car.
During the walk back to [Appellant]’s car, the two conversed about
cellphones and discussed the possibility of Complainant selling
[Appellant] his cellphone. [Appellant] proceeded to charge the
cellphone in his car to make sure it was in working condition. After
[Appellant] was assured the cellphone was in working condition,
he returned the phone to Complainant. [According to
Complainant, t]he two continued conversing, after which,
[Appellant] surprised Complainant when he removed a firearm
from his person and pointed it at . . . Complainant. [Appellant]
then proceeded to demand . . . Complainant’s cellphone and his
wallet, which contained approximately $30 in cash. Complainant
emptied his pockets and handed over his wallet and cellphone to
[Appellant]. [Appellant] drove away to Hunting Park Avenue and
went around a triangle of streets in that area.
Since [Appellant] was still within a short distance of Complainant,
. . . Complainant was able to see [Appellant] momentarily stopped
and arguing with some other people. . . . Complainant approached
[Appellant] and requested that his belongings be returned to him.
[According to Complainant, Appellant] responded by pointing the
same firearm he had pointed at Complainant earlier at . . .
Complainant again and demanded . . . Complainant leave. . . .
Complainant backed away and tried to identify [Appellant’s]
license plate, [and] he was able to identify the first three letter,
“J-R-A.”
Within seconds of walking away, . . . Complainant heard multiple
gunshots and [Appellant] sped away in his car.
There were two police officers, Officer White and Officer Hines, in
a vehicle near the area where the gunshots were fired. As soon as
they heard the gunshots, they sped in the direction in which they
heard them fired. As they arrived to Hunting Park Avenue, at the
4200 block of Carlisle Street, . . . Complainant flagged down the
officers and pointed in the direction [Appellant] had driven off. The
police officers immediately gave chase to [Appellant]’s vehicle and
were able to ascertain the last four digits of the license plate.
The police officers successfully got [Appellant] to pull over his
vehicle, but as the officers exited their vehicle to approach
[Appellant], [Appellant] drove off and made a right turn onto
Broad Street. The police officers returned to their vehicle and gave
chase for a second time. At some point while driving down Broad
-2-
J-S80042-18
Street, the police officers lost sight of [Appellant]. He was
subsequently arrested pursuant to an arrest warrant.[2]
Trial Ct. Op., 3/5/18, at 2-3 (record citations omitted).
Appellant, who was represented by James T. Marsh, Esq. (trial counsel),
proceeded to a jury trial, which resulted in a mistrial on June 7, 2017. On
August 17, 2017, following a second trial, a jury found him guilty of robbery—
threat of serious bodily injury, but acquitted him of two violations of the
Uniform Firearms Act and possessing an instrument of crime (the acquittals).3
Appellant filed a post-trial motion challenging the weight and sufficiency of the
evidence based on the acquittals.
On October 23, 2017, the trial court denied the post-trial motion and
sentenced Appellant to ten to twenty years’ imprisonment. Appellant did not
file a post-sentence motion. Appellant filed both a pro se and a counseled
notice of appeal.4
____________________________________________
2 Appellant gave a statement to police on October 8, 2014, acknowledging
that he and Complainant discussed the sale of a cellphone on August 30, 2014.
N.T., 8/16/17, at 121-122. Appellant stated that he drove away from the
scene because he believed Complainant was trying to rob him. Id. at 123.
According to Appellant, he heard gunshots as he was driving away from the
scene. Id. at 123. Appellant denied Complainant’s allegation that Appellant
threatened him with a firearm. Id. at 125, 127. Appellant, however,
conceded he had Complainant’s cellphone when he left the scene. Id. at 122,
124.
3 18 Pa.C.S. §§ 6106(a)(1), 6108, and 907, respectively.
4Appellant’s pro se notice of appeal was docketed at 3486 EDA 2017. This
Court entered an order memorializing the discontinuance of Appellant’s pro se
appeal on December 14, 2017.
-3-
J-S80042-18
On October 31, 2017, the trial court permitted Appellant’s trial counsel
to withdraw and directed that new counsel be appointed for appeal. On
November 21, 2017, the trial court ordered that a Pa.R.A.P. 1925(b)
statement be filed and served when new counsel actually received all notes of
testimony. Present counsel, Lauren A. Wimmer, Esq., filed a Rule 1925(b)
statement on February 1, 2018. The trial court filed a responsive opinion.
Appellant presents three issues on appeal, which we have reordered as
follows:
[1]. The evidence is insufficient to sustain the verdict of guilt
because the Commonwealth failed to prove beyond a reasonable
doubt that . . . Appellant inflicted serious bodily injury on
[C]omplainant; threatened [C]omplainant with serious bodily
injury; or intentionally put [C]omplainant in fear of immediate
serious bodily injury in the course of committing a theft.
[2]. The verdict is against the weight of the evidence. The jury’s
verdict is so contrary to the evidence as to shock one’s sense of
justice because the Commonwealth failed to prove the elements
of robbery, graded as a felony of the first degree, beyond a
reasonable doubt.
[3]. The trial court erred in failing to charge the jury on the
definition of “theft” and/or “in the course of committing a theft”
as it applies to the robbery statute.
Appellant’s Brief at 6.
Appellant first contends that the evidence was insufficient to sustain his
conviction for robbery. Id. at 14. According to Appellant, the inconsistency
between the jury’s findings that he did not possess a firearm but committed a
robbery by threatening serious bodily injury cannot be reconciled. Id. at 21-
22. Appellant claims that absent the presence of a firearm, the evidence that
-4-
J-S80042-18
Appellant demanded Complainant’s wallet and phone was insufficient to prove
a threat of serious bodily injury. Id.
The principles governing our review of this issue are well-settled.
The standard of review for sufficiency claims requires that an
appellate court determine “whether the evidence admitted at trial
and all reasonable inferences drawn therefrom, when viewed in
the light most favorable to the Commonwealth as the verdict
winner, is sufficient to support all the elements of the offenses.”
As a reviewing court, we may not “weigh the evidence and
substitute our judgment for the fact-finder’s.” Additionally, “the
question of any doubt regarding the facts and circumstances
established by the Commonwealth is for the fact-finder to resolve
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.”
Commonwealth v. Kubis, 978 A.2d 391, 397 (Pa. Super. 2009) (citations
omitted).
Generally, inconsistent verdicts “are allowed to stand so long as the
evidence is sufficient to support the conviction.” Commonwealth v. Miller,
35 A.3d 1206, 1208 (Pa. 2012) (citations omitted). A court should not
speculate on whether the verdicts were a “result of mistake, compromise,
lenity, or any other factor.” Id. at 1213. Moreover, “an acquittal cannot be
interpreted as a specific finding in relation to some of the evidence, and . . .
even where two verdicts are logically inconsistent, such inconsistency alone
cannot be grounds for a new trial or for reversal.” Id.
Pennsylvania recognizes a narrow exception when considering an
inconsistent verdict. In Commonwealth v. Magliocco, 883 A.2d 479, 492
(Pa. 2005), for example, the defendant was charged, tried, and convicted of
-5-
J-S80042-18
ethnic intimidation, but acquitted of terroristic threats. Magliocco, 883 A.2d
at 481. The Magliocco Court noted that the ethnic intimidation required a
conviction of the predicate offense and that the Commonwealth separately
charged and prosecuted the defendant of terroristic threats.5 Id. at 492.
Under those limited circumstances, the Pennsylvania Supreme Court
concluded that the specific finding that the defendant did not commit the
predicate offense of terroristic threats precluded a conviction for ethnic
intimidation. Magliocco, 883 A.2d at 492-93.
Section 3701(a)(1)(ii) of the Crimes Code defines robbery—threat of
serious bodily injury as follows: “A person is guilty of robbery if, in the course
of committing a theft, he: . . . threatens another with or intentionally puts him
in fear of immediate serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii). This
Court has held that
[t]he Commonwealth need not prove a verbal utterance or threat
to sustain a conviction under Section 3701(a)(1)(ii). It is sufficient
if the evidence demonstrates aggressive actions that threatened
the victim’s safety. For the purposes of Section 3701(a)(1)(ii), the
____________________________________________
5 The ethnic intimidation statute provided:
a person is guilty of ethnic intimidation “if, with malicious intention
toward the race . . . of another individual or group of individuals,
he commits an offense under any other provision of this article or
under Chapter 33 . . . or under section 3503 . . . or under section
5504 . . . with respect to such individual . . . or with respect to
one or more members of such a group.” 18 Pa.C.S. § 2710(a).
Magliocco, 883 A.2d at 489 (footnote omitted). In Magliocco, it was
undisputed that the only applicable predicate offense at issue was terroristic
threats. Id.
-6-
J-S80042-18
proper focus is on the nature of the threat posed by an assailant
and whether he reasonably placed a victim in fear of “immediate
serious bodily injury.” Thus, a reviewing court will consider the
defendant’s intent and actions and not necessarily the subjective
state of mind of the victim.
Commonwealth v. Ouch, 199 A.3d 918, 924 (Pa. Super. 2018) (citations
omitted).
In Commonwealth v. Bragg, 133 A.3d 328 (Pa. Super. 2016), this
Court expressly rejected an argument that a conviction under Section
3701(a)(1)(ii) required the possession, or brandishing, of a weapon. See
Bragg, 133 A.2d at 332 (concluding that the defendant’s aggressive actions
placed employees and customers of a bank in fear of serious bodily injury,
despite the fact that the defendant did not brandish a weapon or utter a
specific verbal threat). Therefore, possession of a weapon is not an element
of robbery—threat of serious bodily injury. See id.
Following our review, we discern no merit to Appellant’s sufficiency
challenge. As noted by the trial court, the acquittals cannot be construed as
a specific finding that Appellant did not possess a firearm or some type of
weapon. See Trial Ct. Op. at 6.; Miller, 35 A.3d at 1213. Furthermore,
Appellant’s conviction for robbery—threat of serious bodily injury does not fall
under the narrow exception set forth in Magliocco. See Magliocco, 883
A.2d at 492-93; accord Bragg, 133 A.2d at 332. Having reviewed the record
in light of our standard of review, we discern no basis to disturb the jury’s
finding that Appellant threatened Complainant with serious bodily injury
during the course of a theft. Therefore, Appellant’s first issue fails.
-7-
J-S80042-18
Appellant next contends that the verdict was against the weight of the
evidence. Appellant asserts that “there is no logical explanation for the jury’s
verdict of guilty for robbery and acquittal of the weapons offense[s]. Without
the firearm, Appellant simply could not have placed [Complainant] in fear of
serious bodily injury.” Appellant’s Brief at 22. Appellant adds that the
evidence showed that Complainant was not in fear of serious bodily injury.
Id. In support, Appellant notes that shortly after Appellant took
Complainant’s belongings and attempted to leave the scene, Complainant
confronted Appellant and asked him to return his belongings. Id.
Generally,
[a]ppellate 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.
In order for a defendant to prevail on a challenge to the weight of
the evidence, “the evidence must be so tenuous, vague and
uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)
(citations omitted).
-8-
J-S80042-18
Instantly, Appellant preserved his challenge to the weight of the
evidence in a post-trial motion, see Pa.R.Crim.P. 607(A)(2), which the trial
court denied. The court, in its Rule 1925(a) opinion, reasoned that that “the
jury weighed the evidence presented, evaluated Complainant’s testimony, and
evidently found him credible as it was entitled to do.” Trial Ct. Op. at 9.
We conclude the trial court appropriately deferred to the jury’s findings
that Appellant threatened Complainant with or intentionally put him in fear of
immediate serious bodily injury. The court properly refused to speculate on
the reasons for the acquittals. See Miller, 35 A.3d at 1208. Contrary to
Appellant’s argument, the court was not required to interpret the acquittals as
a specific finding that Appellant did not possess a firearm or place special
weight on the acquittals. See id. Lastly, the fact that Complainant confronted
Appellant after the robbery does not negate the jury’s finding that Appellant
threatened Complainant with serious bodily injury during the theft.
Accordingly, we find no abuse of discretion in the trial court’s decision to deny
Appellant’s request for a new trial. See Talbert, 129 A.3d at 545-46.
Lastly, Appellant contends that the trial court’s jury instruction on
robbery was deficient because the court did not define a “theft.” Appellant’s
Brief at 16. Appellant concedes that trial counsel did not object to the court’s
jury instruction, and this claim could be deemed waived. Id.
Nevertheless, Appellant requests that this Court review his issue as a
matter of ineffective assistance of counsel. Id. at 16-17. Appellant suggests
that an immediate consideration of his ineffectiveness claim would best serve
-9-
J-S80042-18
the interests of justice. Id. at 17. Appellant relies on Commonwealth v.
Humpheys, 532 A.2d 836 (Pa. Super. 1987), and Commonwealth v.
Robinson, 425 A.2d 748 (Pa. Super. 1980), to assert that the trial court’s
instruction on robbery was clearly defective. Appellant further suggests that
trial counsel had no basis for failing to object, and the defective instruction
resulted in prejudice. Id. at 17-18.
It is well settled that
[a] specific and timely objection must be made to preserve a
challenge to a particular jury instruction. Failure to do so results
in waiver. Generally, a defendant waives subsequent challenges
to the propriety of the jury charge on appeal if he responds in the
negative when the court asks whether additions or corrections to
a jury charge are necessary.
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations
omitted); see also Pa.R.A.P. 302.
With respect to a claim of ineffective assistance of counsel, this Court
has noted:
Generally, a claim that trial counsel is ineffective is deferred to
collateral review under the Post Conviction Relief Act. [6]
Commonwealth v. Holmes, . . . 79 A.3d 562, 563-64 ([Pa.]
2013). This general rule has exceptions that allow for review of an
ineffectiveness claim on direct review: (1) the ineffectiveness is
apparent from the record and meritorious to the extent that
immediate consideration best serves the interests of justice; (2)
the defendant has shown good cause and knowingly and expressly
waives his entitlement to seek subsequent PCRA review from the
conviction and sentence; and (3) the defendant is statutorily
precluded from obtaining PCRA relief, such as where the court
sentenced the defendant to paying a fine only. Id.;
____________________________________________
6 42 Pa.C.S. §§ 9541-9546.
- 10 -
J-S80042-18
Commonwealth v. Delgros, . . . 183 A.3d 352, 361 ([Pa.]
2018). Although the trial court retains discretion to address
ineffectiveness claims on post-sentence motions, “the
presumption weighs heavily in favor of deferring such claims to
collateral review.” Commonwealth v. Knox, 165 A.3d 925, 928
(Pa. Super. 2017).
Commonwealth v. Green, 204 A.3d 469, 486-87 (Pa. Super. 2019).
Notably, the exceptions set forth in Holmes focus on the trial court’s exercise
of discretion. See Holmes, 79 A.3d at 563.
Instantly, there is no dispute that trial counsel did not request an
instruction regarding theft or object to the trial court’s jury instruction on
robbery. See N.T., 8/17/17, at 16, 23. Therefore, Appellant’s challenge to
the court’s instruction has been waived. See Pa.R.A.P. 302; Moury, 992 A.2d
at 178.
To the extent Appellant attempts to raise a claim of ineffective
assistance of counsel, we conclude that such a claim is also waived.
Appellant did not present a claim of ineffective assistance of counsel in a
motion before the trial court. Instead, he raised the claim for the first time in
his Rule 1925(b) statement. Therefore, Appellant did not provide an
opportunity for the trial court to consider this issue. See Pa.R.A.P. 302(a).
In any event, Appellant’s attempt to state an exception under Holmes
fails. To establish a claim of ineffective assistance of counsel, three prongs
must be established: “(1) the legal claim underlying the ineffectiveness claim
has arguable merit; (2) counsel’s action or inaction lacked any reasonable
basis designed to effectuate petitioner’s interest; and (3) counsel’s action or
- 11 -
J-S80042-18
inaction resulted in prejudice to petitioner.” Commonwealth v. Mason, 130
A.3d 601, 618 (Pa. 2015) (citations omitted). The failure to establish any one
of the three prongs will defeat the claim of ineffectiveness. Id.
The Pennsylvania Supreme Court “has expressed a distinct preference
for a hearing on counsel’s strategy before venturing to hold that counsel
lacked a reasonable basis for his or her actions or inactions.”
Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010). Therefore,
“[a]s a general rule, a lawyer should not be held ineffective without first having
an opportunity to address the accusation in some fashion.” Id.
In Humpheys, this Court recognized that the failure to object to a jury
instruction on robbery that did not include a definition of theft may have
arguable merit. See Humpheys, 532 A.2d at 840 (discussing Robinson).
Nevertheless, the failure to object to the absence of a definition of theft does
not constitute ineffectiveness per se. See id.
Based on our review, we conclude that Appellant has not established his
claim was both so meritorious and apparent from the record that immediate
consideration would best serve the interests of justice. See Mason, 130 A.3d
at 618; Green, 204 A.3d at 486-87. Appellant has not analyzed Humpheys
or Robinson in light of all the evidence presented at trial, which included
Appellant’s own statements that he took Complainant’s cellphone. Appellant
has not developed a record that trial counsel lacked any reasonable basis
under the facts of this case. See Mason, 130 A.3d at 618. Moreover,
Appellant’s bald assertion that the crux of his defense was whether a theft
- 12 -
J-S80042-18
occurred does not establish actual prejudice under the circumstances of this
case. See Humpheys, 532 A.2d at 840.
Therefore, we find no merit to Appellant’s assertion that his ineffective
assistance of counsel claim presents the type of extraordinary circumstance
set forth in Holmes. See Holmes, 79 A.3d at 563, 577. Accordingly, we
have no basis to entertain the merits of Appellant’s ineffectiveness claim in
this direct appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/19
- 13 -