Com. v. Thomas, D.

J-S08003-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONTAE THOMAS, :
:
Appellant : No. 441 EDA 2014
Appeal from the Judgment of Sentence January 23, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007761-2012
and MC-51-CR-0000625-2012
BEFORE: DONOHUE, WECHT and JENKINS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 18, 2015
Dontae Thomas (“Thomas”) appeals from the judgment of sentence
entered following his convictions of robbery, burglary, conspiracy and
assault.1 Following our review, we affirm.
The trial court summarized the facts underlying this appeal as follows:
On December 30, 2011 at approximately 4:00 P.M.
on the 6600 block of Kindred Street, victim Milagros
Cintron and her paramour, victim Asif Yaqoob, were
inside their home with the front door slightly ajar
when [Thomas] and co-defendant Hector Vasquez
entered the home without permission. (N.T.
10/25/13 p. 21-24, 76-77.) Both victims recognized
[Thomas] and Mr. Vasquez because they had been
acquaintances for several years and neither assailant
had his face covered. (N.T. 10/25/13 p. 28, 39, 78-
79, 90.) [Thomas] put "the gun on [Ms. Cintron's]
chest ... right in the middle of the chest" and Ms.
Cintron experienced some pain. (N.T. 10/25/13 p.
1
18 Pa.C.S.A. § 3702(a)(1)(ii), 3502, 903, 2701(a).
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25-26.) [Thomas] proceeded to push Ms. Cintron
through the living room and up against a wall, and
then demanded her purse. (N.T. 10/25/13 p. 26-28,
78, 81-82.) [Thomas] took Ms. Cintron's purse,
which contained "medication, appointment papers,
and $140.00 which belonged to both Ms. Cintron and
Mr. Yaqoob." (N.T. 10/25/13 p. 27-28, 81-82.)
At the same time, Mr. Vasquez pointed the gun at
Mr. Yaqoob, pushed Mr. Yaqoob against a wall,
began hitting Mr. Yaqoob with the alleged gun, and
was asking for Mr. Yaqoob's wallet. (N.T. 10/25/13
p. 77-78.) Mr. Yaqoob felt "a little bit" of pain (N.T.
10/25/13 p. 86). Mr. Yaqoob said, "look everything's
in the purse; my money's in the purse; take her
purse; just get out." (N.T. 10/25/13 p. 81.)
[Thomas] grabbed Ms. Cintron's purse and [he] and
Mr. Vasquez ran out of the home. (N.T. 10/25/13 p.
82.) Mr. Yaqoob called 911. While on the phone, Mr.
Yaqoob observed [Thomas] and Mr. Vasquez get into
a white Lincoln car, drive a few blocks to a park, exit
the car, and run into a house on Souder Street. (N.T.
10/25/13 p. 82-84.)
Later that evening, Detective Joseph Corrigan
obtained and executed a search warrant at 6550
Souder Street. (N.T. 10/28/1 3 p. 80-82.) Outside of
the home, Detective Corrigan recovered the "black
purse with keys attached to it" that was later
identified as the purse stolen from the victims. (N.T.
10/25/13 p. 36, 41; N.T. 10/28/13 p. 82-83.) Inside
of the home, Detective Corrigan recovered a "silver
colored toy-like-revolver type handgun with a black
handle that "doesn't fire or anything. It's not a real
firearm. It's like hard plastic." (N.T. 10/28/13 p. 80-
82, 86.)
Both victims testified that the firearm recovered from
the search warrant was not one of the guns used
against them. (N.T. 10/25/13 p. 42, 87-88.)
Trial Court Opinion, 5/28/14, at 1-2.
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Thomas was subsequently arrested and charged with twenty-two
counts of a veritable catalog of crimes. Following a jury trial at which
Thomas and Vasquez were tried together, Thomas was convicted only of the
three crimes mentioned above. He filed a post-sentence motion, which the
trial court denied. This timely appeal followed.
Thomas presents two issues for our review:
1. Were not the verdicts for [r]obbery, [c]onspiracy
to [c]omit [r]obbery, [b]urglary and [s]imple
[a]ssault against the weight of the evidence to
such a degree as to shock the conscience, such
that the trial court erred in denying the post-
sentence motion for a new trial?
2. Where the jury found [Thomas] [n]ot [g]uilty of
[p]ossesing an [i]nstrument of a [c]rime and
made a specific finding as part of the verdict that
there was no weapon involved, the evidence was
insufficient to support the verdict of guilty of
robbery in the first degree.
Thomas’ Brief at 5.2
The first issue presented argues that Thomas’ convictions were against
the weight of the evidence.
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
2
Thomas included a third issue in his statement of questions involved. but
he did not include that issue in his Pa.R.A.P. 1925(b) statement of matters
complained of on appeal. See Thomas’ Brief at 5; Statement of Matters
Complained of on Appeal, 3/18/14. Accordingly, it has been waived for
purposes of appeal. Pa.R.A.P. 1925(b)(4)(vii).
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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.
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[,] [t]he
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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the
original) (citations omitted). Accordingly, we are mindful that as we review
Thomas’ claim, we are not passing on the underlying question of whether
the verdicts were against the weight of the evidence, but rather we are
considering whether the trial court abused its discretion in denying his
motion based upon his claim that the verdict was against the weight of the
evidence. We are focused, therefore, on evidence that the trial court’s ruling
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is “manifestly unreasonable or [that] the law is not applied or [that] the
record shows that the action is a result of partiality, prejudice, bias or ill-
will.” Id.Thomas’ argument fails to appreciate our standard and scope of
review. The entire argument is framed in terms of the jury’s determination
that the victims’ testimony was credible. Thomas does not present any
argument as to how he believes the trial court abused its discretion in
denying his post-sentence motion. He only points to what he considers to
be inconsistencies and irregularities in victims’ testimony and assails the
jury’s credibility determinations and fact finding. Thomas’ Brief at 11-12.
Thus, his argument is directed to the underlying question of whether his
convictions are against the weight of the evidence. As stated above, this is
not the question before us for review.
Thomas has not provided us with appropriate argument relative to our
standard of review, and this Court will not develop an argument on his
behalf. See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.
2006). In addition, however, we note that our independent review of the
record provides us with ample support for the conclusion that the trial court
did not abuse its discretion in deciding that the verdicts in this case were not
against the weight of the evidence. We therefore find no merit to Thomas’
claim.
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Thomas’ remaining claim assails the sufficiency of the evidence
supporting his conviction of robbery graded as a first-degree felony. When
reviewing a sufficiency of the evidence claim, “we must determine whether
the evidence admitted at trial, as well as all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the verdict winner,
are sufficient to support all elements of the offense.” Commonwealth v.
Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (quoting Commonwealth v.
Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)). When performing this review,
“we may not reweigh the evidence or substitute our own judgment for that
of the fact finder.” Id.Thomas argues that because the jury found both him and his co-
defendant not guilty of possession of an instrument of crime, there is
insufficient evidence to support a conviction of first-degree felony robbery.
Thomas’ Brief at 13. Thomas is mistaken. The definitions and gradations of
robbery are found in section 3701 of the Crimes Code. It provides as follows:
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts
him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to
commit any felony of the first or second
degree;
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(iv) inflicts bodily injury upon another or
threatens another with or intentionally puts
him in fear of immediate bodily injury;
(v) physically takes or removes property from
the person of another by force however slight;
or
(vi) takes or removes the money of a financial
institution without the permission of the
financial institution by making a demand of an
employee of the financial institution orally or in
writing with the intent to deprive the financial
institution thereof.
(2) 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.
(3) For purposes of this subsection, a “financial
institution” means a bank, trust company, savings
trust, credit union or similar institution.
(b) Grading.—
(1) Except as provided under paragraph (2), robbery
under subsection (a)(1)(iv) and (vi) is a felony of the
second degree; robbery under subsection (a)(1)(v) is
a felony of the third degree; otherwise, it is a felony
of the first degree.
(2) If the object of a robbery under paragraph (1) is
a controlled substance or designer drug as those
terms are defined in section 2 of the act of April 14,
1972 (P.L. 233, No. 64),1 known as The Controlled
Substance, Drug, Device and Cosmetic Act, robbery
is a felony of the first degree.
18 Pa.C.S.A. § 3701.
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Thomas was convicted of robbery under § 3701(a)(1)(ii), which
requires evidence that he “threaten[ed] another with or intentionally put[]
him in fear of immediate serious bodily injury[.]” 18 Pa.C.S.A. §
3701(a)(1)(ii). “Serious bodily injury,” in turn, is defined as “[b]odily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301.
The evidence, when considered in the light most favorable to the
Commonwealth, establishes that Thomas pressed a gun against Ms.
Cintron’s chest while repeatedly demanding money. N.T., 10/25/13, at 24-
26, 81. Ms. Cintron testified that she was afraid for her life while Thomas
was doing this to her. Id. at 29. As a result, Ms. Cintron gave Thomas her
purse. Id. at 27. This evidence is sufficient to establish that in the course
of committing a theft, Thomas intentionally put Ms. Cintron in fear of
immediate serious bodily harm, thus satisfying the elements contained in §
3701(a)(1)(ii). Pursuant to § 3701(b)(1), this is a felony of the first degree.
In his view, if Thomas or Vasquez did not possess a gun, “then what
they did can rise no higher than [r]obbery of the [t]hird [d]egree.” Thomas’
Brief at 13. Thomas boldly presumes that the jury “did not believe the
testimony of Melogros [sic] Cintron that [Thomas] poked her in the chest
with a gun, nor the testimony of Asif Yaqoob that [Vasquez] hit him on the
head repeatedly with a gun. Without those facts, the evidence does not
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establish … that the perpetrator[] cause[d], attempt[ed] to cause, or put the
victim in fear of serious bodily injury.” Id. Contrary to Thomas’ position,
the fact that the jury found Thomas not guilty of possession of an instrument
of crime does not diminish or negate this evidence. The jury returned an
inconsistent verdict, which our law expressly permits:
Well-settled Pennsylvania law permits inconsistent
verdicts, provided sufficient evidence supports the
conviction. Commonwealth v. Miller, [] 35 A.3d
1206 ([Pa.] 2012); Commonwealth v. King, 990
A.2d 1172, 1178 (Pa. Super. 2010), appeal denied,
53 A.3d 50 ([Pa.] 2012); Commonwealth v. Trill,
[] 543 A.2d 1106, 1111 ([Pa. Super.] 1988), appeal
denied, 562 A.2d 826 ([Pa.] 1989). “[I]nconsistent
verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal.”
Commonwealth v. Rose, 960 A.2d 149, 158 (Pa.
Super. 2008), appeal denied, 980 A.2d 110 ([Pa.]
2009) (citation omitted). “An acquittal cannot be
interpreted as a specific finding in relation to some of
the evidence.” Miller, [] 35 A.3d at 1213.
Commonwealth v. Houck, 102 A.3d 443, 451 (Pa. Super. 2014); see also
Commonwealth v. Moore, 103 A.3d 1240, 1250 (Pa. 2014) (holding that
conviction of possession of an instrument of crime may be sustained when
defendant has been otherwise acquitted of related offenses involving the use
of that instrument of crime). As recounted above, there was sufficient
evidence to support the jury’s verdict regarding first-degree felony robbery;
accordingly, this inconsistent verdict does not advance Thomas’ cause.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
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