Com. v. Foxwell, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RANDY K. FOXWELL, No. 2243 EDA 2018
Appellant
Appeal from the Judgment of Sentence Entered February 16, 2018,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0007851-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2019
Randy K. Foxwell appeals from the February 16, 2018 judgment of
sentence entered in the Court of Common Pleas of Montgomery County
following his conviction in a jury trial of two counts of robbery and one count
each of criminal conspiracy to commit robbery and simple assault.' Appellant
received an aggregate sentence of 10 to 20 years' imprisonment.2 We affirm.
' 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 903, and 2701(a)(1), respectively.
We note that the trial court found appellant guilty of driving under the
influence ("DUI") pursuant to 75 Pa.C.S.A. § 3802(a)(1) and sentenced
appellant to 6 months' probation and ordered him to pay a $300 fine. (Notes
of testimony, 8/4/17 at 66; see also sentencing order, 2/16/18.)
2 The record reveals that the trial court sentenced appellant for his conviction
of robbery - Section 3701(a)(1)(ii) - felony of the first degree, but did not
impose a sentence for his conviction of robbery - Section 3701(a)(1)(iv) -
felony of the second degree. (Sentencing order, 2/16/18; see also
sentencing hearing transcript, 2/16/18 at 11.) Pursuant to 42 Pa.C.S.A.
§ 9714(a)(1), appellant was sentenced to a minimum of 10 years'
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The trial court set forth the following factual and procedural history:
The offenses for which [appellant] was convicted took
place on August 10, 2016, on Interstate 76,
Montgomery County, Pennsylvania.
On that date,van being operated by [appellant] hit
a
another vehicle while merging onto Interstate 76 from
Route 202. [Appellant's] vehicle struck a commercial
crane truck, driven by Brian Bileyu. Mr. Bileyu
testified at trial that the van being driven by
[appellant] veered into the passenger side of his crane
truck, leaving a small scuff mark on the crane and a
broken mirror and paint scratches on the driver side
of the van.
Mr. Bileyu further testified that initially after the
accident he pulled off onto the side of the road.
[Appellant] did not immediately do so, rather he
steered the van next to the crane truck, and yelled at
the driver through his open window. [Appellant] then
pulled the van onto the side of the road, and he and
the front seat passenger in the van, Jeffrey Jones, Jr.,
got out, walked over to the driver['] side window of
the crane truck, and tried to open the door.
It was the testimony of Mr. Bileyu, that upon coming
over to the driver's side window of the crane truck,
[appellant] and Mr. Jones attempted to open the door
to the crane truck and were "demanding money
saying we will rob you and do all of this stuff." The
two men insisted that Mr. Bileyu give them his wallet
and give them a check. Once Mr. Bileyu did not
cooperate[,] the two men began punching him in the
face and mouth. As the men continued punching him,
it is the testimony of Mr. Bileyu, that the passenger in
the van, Mr. Jones[,] continued to tell Mr. Bileyu that
he was going to pay them. Mr. Jones then informed
Mr. Bileyu that he had a gun, which Mr. Bileyu did
observe. Eventually, a female passenger who had
imprisonment for the conviction of his current crime of violence, in this case
robbery, because in 1992 appellant was convicted of a previous crime of
violence, also robbery. (Sentencing hearing transcript, 2/16/18 at 10.)
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been waiting in the van approached [appellant] and
Mr. Jones and spoke to the men, which ultimately
resulted in [appellant] and Mr. Jones leaving
Mr. Bileyu alone in the crane truck. [Appellant] and
Mr. Jones got into their van and drove away.
Sergeant William Charles Slaton, of the State Police,
also testified at trial. It was the testimony of
Sergeant Slaton that he arrived on the scene as
[appellant] was being handcuffed. Sergeant Slaton
observed that [appellant] appeared disheveled, was
very irate, and he smelled strongly of alcohol. In
addition, Sergeant Slaton observed [appellant]
urinate on himself while in the back of a police car on
the scene.
Upon conclusion of the two-day Jury trial, [appellant]
was found guilty as to all counts. [Appellant] was
sentenced on February 16, 2018. [Appellant] then
filed a pro se post -sentence motion on February 26,
2018. Subsequent to the pro se filing, by order dated
March 6, 2018, this Court appointed new counsel,
Attorney Henry Hilles, III[,] to review the
post -sentence motion and either amend it or seek
additional time for the motion to be ruled
upon.[Footnote 6] Mr. Hilles opted to amend
[appellant's] pro se motion, and on May 1, 2018, filed
an Amended Post -sentence Motion on behalf of
[appellant]. This Court denied [appellant's]
Post -sentence Motion by order dated June 25, 2018.
On July 24, 2018, [appellant] filed a timely notice of
direct appeal to the Superior Court of Pennsylvania.
By order dated July 26, 2018, the [trial court] directed
[appellant] to file a [concise] statement of errors
complained of on appeal, pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b). This Court
received [appellant's Rule] 1925(b) statement on
August 16, 2018.
[Footnote 6] On March 9, 2018, while
unaware of Mr. Hilles' representation,
[appellant] filed a pro se notice of direct
appeal. Mr. Hilles petitioned the Superior
Court to have that appeal withdrawn,
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which was granted by order dated June 4,
2018.
Trial court opinion, 9/18/18 at 1-4 (citations to notes of testimony and
footnote 5 omitted). The trial court subsequently filed its Rule 1925(a)
opinion.
Appellant raises the following issues for our review:
1. Was the evidence at trial sufficient for the jury
to find [a]ppellant guilty of the crime of robbery
(and by extension criminal conspiracy to commit
robbery)?
2. Was the finding of guilt for the crimes of robbery
(and by extension criminal conspiracy to commit
robbery) against the weight of the evidence?
Appellant's brief at 2.3
Appellant first claims the evidence was insufficient to support his
robbery conviction. Our standard and scope of review for a sufficiency of the
evidence claim is well settled.
The standard we apply in reviewing the sufficiency of
the evidence is 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. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact -finder. In addition, we note
3Appellant's Rule 1925(b) statement reveals that he failed to raise sufficiency
and weight claims challenging the conviction for criminal conspiracy to commit
robbery. Therefore, those claims are waived pursuant to
Pa.R.A.P. 1925(b)(4)(vii). See Commonwealth v. Castillo, 888 A.2d 775,
780 (Pa. 2005) (stating, "Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived."), re -affirming, Commonwealth v.
Lord, 719 A.2d 306 (Pa. 1998).
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that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. 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. The Commonwealth may
sustain its burden of proof or proving every element
of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated
and all the evidence actually received must be
considered. Finally, the trier of fact while passing
upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).
Robbery is defined, in pertinent part, as follows:
§ 3701. Robbery
(a) Offense defined. --
(1) A person isguilty of robbery if, in
the course of committing a theft,
he:
(ii) threatens another with
or intentionally puts
him in fear of
immediate serious
bodily injury; . . .
(iv) inflicts bodily injury
upon another or
threatens another with
or intentionally puts
him in fear of
immediate bodily
injury;
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18 Pa.C.S.A. § 3701(a)(1)(ii) and (iv). "An act shall be deemed 'in the course
of committing a theft' if it occurs in an attempt to commit theft or in flight
after the attempt or commission." See id. at § 3701(a)(2); see also
Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.Super. 2007) (citation
omitted) (holding that, "any overt attempt to commit theft will constitute
robbery if the requisite force is employed" and the jury is "free to convict on
robbery even when it finds no theft was completed."). "A person is guilty of
theft if he unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof." 18 Pa.C.S.A.
§ 3921(a).
Here, appellant argues that although he punched Mr. Bileyu several
times and demanded that Mr. Bileyu pay for the damage to his vehicle,
appellant was only attempting to collect restitution for the damage to his
vehicle and "ultimately drove away from the scene without taking or accepting
any money." (Appellant's brief at 13-15; see also appellant's Rule 1925(b)
statement, 8/16/18 at 1,111.) In so arguing, appellant challenges the element
of theft to support his conviction for robbery.
In viewing all of the evidence admitted at trial in the light most favorable
to the Commonwealth, as verdict winner, we find there is sufficient evidence
to enable the jury, as fact -finder, to find that appellant attempted to unlawfully
take or exercise unlawful control over Mr. Bileyu's wallet and money with the
intent to deprive Mr. Bileyu of his movable property.
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A review of the record reflects that after the accident, appellant pulled
his van next to Mr. Bileyu's vehicle; and appellant and the passenger in
appellant's van started "hollering" at Mr. Bileyu, accusing Mr. Bileyu of hitting
appellant's van, and demanding that Mr. Bileyu pay appellant money. (Notes
of testimony, 8/3/18 at 28.) Mr. Bileyu testified that appellant and the
passenger exited the van and came to the window of Mr. Bileyu's vehicle
"demanding money saying we will rob you and will do all this stuff." (Id. at
29 (emphasis added).) When asked what kind of things appellant was saying
to him, Mr. Bileyu stated, "Give us your wallet. We want a check. You will
write us a check. Give us your check." (Id. at 29-30.) Mr. Bileyu also stated
that after appellant opened Mr. Bileyu's door, appellant "was trying to reach
for my wallet in my pocket." (Id. at 32.)
The record clearly demonstrates that appellant attempted to unlawfully
take or exercise control over Mr. Bileyu's wallet and money when appellant,
after demanding money from Mr. Bileyu, attempted to reach into Mr. Bileyu's
truck for his wallet. Therefore, appellant's sufficiency claim is without merit.
Appellant next raises a weight of the evidence claim challenging the
conviction of robbery. (Appellant's brief at 2, 16-18.) Appellant contends the
jury's conclusion that a theft or attempted theft occurred "defies credulity."
(Id. at 18.) This court's standard of review when presented with a weight
claim is distinct from that applied by the trial court in reviewing the claim in a
post -sentence motion.
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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 verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Home, 89 A.3d 277, 285 (Pa.Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). The trial court
abuses its discretion "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." Home, 89 A.3d at 285-286
(citation omitted).
Here, appellant contends that Mr. Bileyu's testimony establishes,
inter alia, that appellant and Mr. Bileyu were involved in a relatively minor
car accident; appellant requested compensation from Mr. Bileyu for damage
to appellant's vehicle; and appellant left the scene of the accident without any
compensation from Mr. Bileyu. (Appellant's brief at 17.) Appellant boldly
asserts that Mr. Bileyu's testimony "confirmed that no theft or attempted theft
occurred at the scene of the accident." (Id. at 18.)
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A review of appellant's brief demonstrates that appellant invites us to
do nothing more than reassess Mr. Bileyu's credibility and reweigh the
evidence in an attempt to convince us to reach a result different than the one
reached by the trial court in denying the request for a new trial. (See id. at
16-18.) This is not the role of an appellate court. See Commonwealth v.
Clay, 64 A.3d 1049, 1056 (Pa. 2013) (holding that, the role of the appellate
court when addressing a weight claim is to determine if the trial court
exceeded its limit of judicial discretion or invaded the province of the jury).
Therefore, we decline appellant's invitation to reweigh the evidence.
After carefully reviewing the record, we discern no abuse of discretion
in the trial court's denial of appellant's post -sentence motion as it relates to
the weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 8/12/19
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