J-S54014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ASIA TYLER, Appellant No. 1533 WDA 2015 Appeal from the Judgment of Sentence Entered April 6, 2015 In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007780-2014 CP-02-CR-0012569-2014 BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 22, 2016 Appellant, Asia Tyler, appeals from the judgment o f sentence of 50 to 120 months’ incarceration, imposed after a jury con victed him (in case 7780-2014) of robbery, 18 Pa.C.S. § 3701(a)(1)(i), and possessing an instrument of crime (PIC), 18 Pa.C.S. § 907(a). Ap pellant also pled guilty (in case 12569-2014) to robbery, and for that offen se he received a term of 36 months’ probation, to run consecutively to the s entence imposed in case 7780-2014. Herein, Appellant solely challenges the weight of the evidence to sustain his convictions of robbery and PIC in ca se 7780-2014. After careful review, we affirm. We have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and well-J-S54014-16

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crafted opinion of the Honorable Jill E. Rangos of the Court of Common Pleas of Allegheny County. We conclude that Judge Rangos ’ well-reasoned opinion demonstrates that she did not abuse her discretion in denying Appellant’s request for a new trial based on his weight-of-the- evidence claim. See Trial Court Opinion (TCO), 2/17/16, at 4-6. Accordingly, we adopt Judge Rangos’ opinion as our own regarding that issue, and affirm Appellant’s judgment of sentence on that basis. 1 Judgment of sentence affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary Date: 9/22/2016

____________________________________________ 1 In her opinion, Judge Rangos also addresses a sent encing claim raised by Appellant in his Pa.R.A.P. 1925(b) statement. See TCO at 6-7. Appellant has not asserted that sentencing issue herein; cons equently, we do not adopt, or express any opinion on, Judge Rangos’ ana lysis of that sentencing claim.J-S54014-16

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1 18 Pa.C.S. § 3701(a)(l)(i). 2 . 18 Pa.C.S. § 907(a). on Appeal on October 28, 2015. Appellant filed a Notice of Appeal on October 5, 2015 and a Statement of Errors Complained of This Court denied Appellant's Motion for Post Sentence Relief on September 28, 2015. Appellant to 36 months incarceration concurrent to the sentence imposed at CC #201407780. 2015, Appellant pled guilty to one count of Robbery at CC #201412569. This Court sentenced sentenced him
. to 50 to 120 months incarceration with 36 months probation. Also on April 6, and Possession of Instruments of Crime.' at CC #2014407780. On April 6, 2015, this Court On April 2, 2015, Appellant, Asia Shakeern Tyler, was convicted by a jury of Robbery' February 17, 2016 RANGOS,J. OPINION Appellant. ASIA SHAKEEM TYLER, Appeal of: ASIA SHAKEEM TYLER CC No. 201407780 CC No. 201412569 

### v. CRIMINAL DIVISION COMMONWEALTI-1 OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA Circulated 08/24/2016 03:39 PM3

counter and held a knife to her throat. (TT 47) Additionally, the video showed an individual corroborated her testimony. (TT 44-50) The video showed that the perpetrator jumped over the At trial, Kadirova reviewed the store's surveillance video which substantially circle" tattoo 

### dn his right arm, starting mid-forearm and ending below the elbow. (TT 41) body." Id. He wore tan pants and a white tank top. Id. She observed a "dragon and a small the perpetrator as "very tall, like six-one, six-two, neither fat nor skinny, but had a 'normal' "lucky dollar," which was underneath the cash register drawer. (TT 34, 55) Kadirova described I (TT 33) She 'opened the cash register and the man took approximately $191, including her 33) She testified that he held a knife to her throat and demanded that she open the cash register. ' Kadirova returned to the front of the store and saw a masked man jurrip over the counter. (TT the store at approximately 4:25 p.m. while she was washing dishes in the back. (TT 29-30) 2014. (Transcript of Jury Trial April 1-2, 2015, hereinafter TT 29-30) She heard someone enter was working at a sandwich shop in the Lawrenceville neighborhood of Pittsburgh on May 22, The testimony in this case is summarized as follows. Kymbat Kadirova testified that she SUMMARY OF EVIDENCE Sentencing Guidelines without stating its reasons for departing from the standard range. Id. at 3. discretion in sentencing at CC #201412569, because it sentenced in the aggravated range of the (Concise Statement of Errors at 2) Additionally, Appellant contends that the Court abused its Commonwealth's evidence was of such poor character as to shock the conscience of the Court. the verdict at CC #201407780 was against the weight of the evidence, because the Appellant, in his Concise Statement, raises two issues on appeal. Appellant contends that

MATTERS COMPLAINED OF ON APPEAL4

10 95, 10 9 8 (Pa
. S u pe r . 1 99 7 ) (ci tin g Com
. v . S i m mo n s, 66 2 A. 2d 6 2 1 , 63 0 (P a. 1 995 ) )
. Co m. v. Ta

y l o r , ' 4 71 A.2 d 1228 , 1 23 0 (Pa.S u p e r. 198 4 ). S ee a ls o, Co m . v . M a r ks, 7 0 4 A.2d Wh e th er a n e w tri al s h o uld b e grant ed on gro und s th at th e ve rd ic t is a gain s t th e w eig ht of th e ev id e n ce is ad dr esse d to th e so und di sc r e ti o n of th e tri al jud g e , and [h e r] d ec i s i o n will n o t be r ev er s e d o n app eal u nl e s s th ere h as b e en an abu se of di scr e tio n .... T he t es t i s n o t wh ether the c o urt would h ave d eci d e d th e c a s e i n th e s am e way b u t w h e th e r th e v e rd ict is so co ntrary t o th e e vi d ence as to m ake th e a ward of a n e w tri al imp erative so that rig ht m ay b e g iv e n an o th er op p o rtunity t o pr e v ail. m e ri tl ess . The s t and ard fo r a " w e i gh t of th e e vi d e n c e " cl aim i s as fo ll o w s : App e ll ant 's fi r s t i ss u e, that th e v e rdi c t w a s a g ain s t th e w e i g h t o f th e e v id e n ce , i s DIS C U S SION was r eco v e r e d fr o m App e llant 's p ant s po c ke t. ( IT 77

- 7 8 ) surr e nd e r ed it t o th e poli c e . ( IT 69 ) O ffi ce r St o dd ar d t es tifi e d th at ap p rox im at e l y $34 0 d o ll ars 6 8) Th e O f

fi ce r te s tified th at , on c e app re h e nd ed, App e ll an t r e m oved a kn i fe fro m h i s p ocke t and ( IT 65

- 66 ) Offic e r St o ddard pur s ued on fo ot and ev entu ally app re h en d e d A p p ellan t. ( IT 67 - Appell ant , fled from th e Officer 's patro l car tow ard a s e t o f r ailro ad tr a cks in an in du s tri al ar e a. th e crime s cen e . (IT 64-65 ) Of fi ce r St o dd ard t es tified th at th e su s p ec t , l at e r id e nti fie d as "v e ry t all black mal e wearin g tan pant s and a whit e and re d s trip e d po l o s hirt " s i x bl oc k s fr o m r es p o nded t o th e 911 c all
. (IT 57 ) O ff ic e r St o dd ard as ke d K a di ro va whic h w ay th e pe rpe trat o r
ran . (IT 64

- 65) Th e Offi ce r t esti fied th at h e fo llow e d K a dir ova ' s dir ec ti o n s, and e n co un te r ed a fo r th e fa c t that Appell ant w as w earing a d iff er e nt shirt. ( IT 50) Officer Daniel S tod dard o f th e City o f P i tt s burgh P o lic e D e p artm e nt t e stifie d th at h e i d e ntificatio n purp os es, App e llant m atch e d th e i nd i vidu al wh o r ob b e d h e r at knife po int exce p t w e aring t an p ants . (IT 50) K a d i rov a , how e v e r , t es tifi ed wh e n App e ll ant wa s bro u g ht t o h e r fo r5

$340 while only $191 was reported missing from the cash register. Appellant could have come that Appellant disposed of the "lucky dollar." Finally, Appellant was found in possession of that the police did not see the identifying mark, that the "lucky dollar" had no marking at all, or did not know to look for this dollar when they sorted through the cash. (TT 85) It is possible of the "lucky dollar," neither does it rule out that possibility. This Court notes that the police disposable. Although the testimony does not support a finding that Appellant was in possession the video may have been chosen by Appellant because it was ubiquitous and essentially likely caused by the polo shirt Appellant was wearing upon arrest. The white tank top seen in noticeably. The jury may have accepted the argument of the Commonwealth that the bulge was As seen in the store video, one of the pockets in the leg of Appellant's cargo pants bulged out the evidence. Appellant clearly had time to change his shirt before the police encountered him. these apparent discrepancies, alone or taken together, make the verdict contrary to the weight of possession of $340 when Kadirova testified only $191 was missing from the register. None of on video surveillance, he was not in possession of a dollar marked "good luck," and he was in , Appellant argued that when he was arrested, he was wearing a different shirt than shown not so contrary to the evidence as to make the award of a new trial imperative. apprehended six blocks from the crime scene in possession of cash and a knife. The verdict is jury corroborates Kadirova's testimony and description of Appellant. Appellant was part the description of Appellant. Video surveillance from the store which was shown to the of the perpetrator a year after the incident, his body structure, clothing, and tattoo, fits in large counter, held a knife to her throat, demanded cash, and robbed the store. Kadirova's description Kadirova testified that a suspect matching Appellant's description jumped over the6

i nto possessio n 'of th e ex tra ca sh i n an y numb e r o f l eg itim ate o r ill egiti m ate w ay s, an d th is so call e d di sc r e p an cy i s o f n o mo m e nt. Ap pe llant n e xt alleg es this C o urt err ed in s en te n ci ng i n th e a g g ravat e d r ange w ith o ut pl a cin g its r easo n s fo r d o ing s o o n th e r eco rd
. B efo r e a d dr e s s ing an y all ege d se nt e ncin g err o r , Ap pe ll ant mu s t f

ir s t es t ab li s h th at a s ub s t antial qu e stio n ex i s t s th at hi s se nt e n ce is i n app ro priat e und e r th e S e nt e ncin g C o de. 42 Pa
. C. S. § 97 81 (b ); Co mm o n wea lth v . Urruti a, 653 A. 2d 70 6, 710 ( P a . Sup er, i 9 9 5)
. Th e d e t ermin atio n o f w h ethe r a p articu lar iss u e co n s titut e s a " s u bstanti al qu es tion " c an o n l y be ev alu at e d o n a ca s e by case ba s i s . Commo n wea l th v . H o u se, 537 A
. 2 d 3 61 , 364 (P a. Su p er. 198 8)
. It is ap p ro pri ate t o all o w an ap peal "w h e r e an app e llant a dvan ces a co l orabl e ar gum e nt th at th e tri al ju dg e ' s acti o n s we re: (1) i n co n s i s t e n t wi th a s p eci fic p r ov i si on of th e s e nte nci ng co d e ; or ( 2 ) co ntrary to th e fund ame nt al n orms w h ic h u nd e rlie th e se n tenci ng p ro ce ss ." Co mm o nw e al th v. L o sc h, 535 A.2 d 115 , 11 9 -1 2 0 n. 7 (P a .Su pe r . 1 98 7)
. A pp ellan t h as
n o t rai se d a su b s t an tial qu esti o n fo r ap p e ll at e r e vi ew be c au se th e S e n tencing Co urt se nte nc e d
w ith i n th e appropriat e rang e co n si d eri ng App e ll ant u se d a d ea dl y w eapo n i n th e co mmi ss i o n of his c rim es . T h e Pe nn s ylv ani a S e nten c ing Guidelines r e quir e a se nt e ncing c o urt t o u s e an e nh an ce d se nte n ci ng m atrix i f th e co urt fi n d s that the o ff e nd er p o sses s e d o r us ed a dead l y w eapo n . 2 04 Pa. C od e§ 3 0 3
. 9. Ass umin g, ar

gue ndo , Ap pe ll ant h a d raised a subst anti al qu es ti o n , h e i s s till n o t e nti tl e d t o re li ef
. Wh e n : i mp os i n g a se nt e n ce, thi s Co urt i s re quire d to co n si d er, i nte r a l ia, the p ro t ec tio n of th e public , th e gr avity of th e o ffe ns e i n rel atio n t o th e impact o n the vic tim s and co mmu nity, and th e r e hab ilit ati v e n eeds of th e de fe nd ant. 42 Pa. C. S. §9 7 2 1(b )
. Th e s t an dard of r ev i e w w ith r es p ec t t o se nten ci n g is w h e th e r th e se nt e n c in g co urt abu se d it s di sc r etio n . Co mm o n w e a lth


### v . Sm i th, 6 7 3 A.2d 8 93, 895 ( P a. 1 9 9 6)
. A court will n o t h av e abu se d it s di sc r e tio n unl ess " th eBY THE COURT :

b e AF F IRM E D
. Fo r th e ' ab ove r e as o ns, n o abu se o f di sc r e tio n occ urr e d and th e rulings o f thi s C o urt sh all CONCLUSION Co urt t o prot ec t s o ci e ty fr o m hi s viol e nt acti o ns. rule s o f s oci e ty , and this s e nte nc e is r e fl ec tive of h is r e habilit ativ e n e eds and th e duty of thi s p e riod. ( ST 17 ) App e llant h a s n o t di s p lay e d th e ability t o c onf orm h is b e h avi o r t o th e reas on abl e vi o lent crimin al b e h avior d i spl aye d by App e llant and fas hion e d a s e nten ce which wa s d e s i gn e d t o allow App e llant t o m atur e and d e mon s trat e app ro priat e b e havi or during h i s i n car ce ratio n vi o lenc e i n the c o mmissi o n o f a th ef t. The Co urt indicate d its co nc e rn o v e r th e p att e rn o f h e had mer el y m a d e "impulsi ve " d e ci s ions
. In b o th offe ns es , App e llan t dis p l ayed s i gn ific ant machin e. Th e tw o o ffen se s es tablish a patte rn of beh avi or th at refute s App e llant's po s ition that guilty t o a s e parat e in cide nt o f Robb e ry whe re he se riously beat a m an op erating an A T M App e ll ant u se d
. a d e adly weap o n in th e commis s i o n of hi s cri m e s. Additi o nally , App e llant p l ed a gg rav at e d se nt e n ci ng rang e . Thi s C o u rt impo se d a s e nt e n ce in the e nh an ced rang e bec ause App e ll an t argu e s that this Co urt did n o t s t ate its r e as o ning fo r s e nt e n ci ng in the 2003 )
. may h ave reac hed a diff e r e nt co nclu sio n . G rad

y v. Frito- Lay, In c . , 6 13 A.2d 10 3 8 , 1046 ( P a . partiality, prejud i c e, bia s o r ill

- will." I d
. It i s not an abu se o f discr e ti o n i f th e app e llat e c ourt record discl o s es th at the j udgment exe rcis e d wa s manif e stly unreason abl e , o r th e re sult o f8 James'J. Robtson, Law Clerk for Jill E. Rangos Melissa R. Ruggiero, Esq. Office of Conflict Counsel 1405 Allegheny Building 429 Forbes A venue Pittsburgh, PA 15219 Michael Streily, Esq. District Attorney's Office 401 Allegheny County Courthouse 436 Grant Street Pittsburgh, PA 15219 February 2016. mailed to the following individuals by first class mail, postage prepaid on the 17th day of The undersigned hereby certifies that a true and correct copy of this OPINION was CERTIFICATE OF SERVICE ' I