J-S02002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MONTANA NIXON,

Appellant No. 3168 EDA 2014

Appeal from the Judgment of Sentence October 24, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000053-2014

BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 15, 2016

Appellant, Montana Nixon, appeals from the judgment of sentence 

entered following his convictions of robbery, theft by unlawful taking, and 

receiving stolen property. We affirm.

The trial court summarized the underlying facts of this case as follows:

On December 4, 2013, Ms. Latesha Rucker, holding her 

iPhone in her right hand, boarded a southbound SEPTA Broad 

Street Line train at Broad and Hunting Park [at] approximately 3 

p.m. (N.T. Trial (Waiver) Vol. 1, 9). At the time she boarded 

and sat down in the train, she noticed two men speaking with 

each other (identified as [Appellant] and Khary Littles). (N.T. 

Trial (Waiver) Vol. 1, pp. 10-11). They each boarded the train 

sometime prior to the Hunting Park stop (N.T. Trial (Waiver) Vol. 

1, p. 10).

They were seated on the same side of the train car 

separated only by the train’s doors. (N.T. Trial (Waiver) Vol. 1, 

p. 11). Ms. Rucker said they were speaking to each other as 

they watched her enter the train car. Then a short time later, 

Mr. Littles stood, walked to the back of the train car, and he 
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entered the adjoining car. (N.T. Trial (Waiver) Vol. 1, pp. 11-12, 

15).

Upon reaching the Broad and Erie stop and after the train 

doors opened, the Appellant snatched Ms. Rucker’s iPhone from 

her hand and ran off the subway train and up the station stairs. 

(N.T. Trial (Waiver) Vol. 1, pp. 12-14). According to Ms. Rucker, 

Mr. Littles also exited the train at the same station but from 

another train car and walked in a different direction than the 

Appellant. (N.T. Trial (Waiver) Vol. 1, [p]. 21-24). Ms. Rucker 

barely got off before the train doors closed and gave chase of 

the thief but lost sight of him once he exited the station onto the 

street[.] Ms. Rucker abandoned the chase after she could not 

see him when she reached street level.

But then she spotted a police car parked nearby and 

approached a police officer (later identified as Officer De[n]nis 

Herod), to tell him about the iPhone stolen from her on the 

subway train along with a description of the perpetrator. 

Coincidentally, around that very moment, Ms. Rucker saw Mr. 

Littles approximately 10-15 feet away from the police car and 

pointed him out to the police officer, who shortly thereafter 

picked up Mr. Littles (N.T. Trial (Waiver) Vol. 1, pp. 12-14, 24). 

Ms. Rucker went on to describe the man who stole the phone as 

light skinned wearing a burgundy hoodie, tan pants, a tan coat 

and a hat with white stripes around it (N.T. Trial (Waiver) Vol. 1, 

pp. 17, 29-30). Officer Herod testified that he had been 

approached by Ms. Rucker around 3:25 or 3:30 and largely 

corroborated her testimony including the perpetrator’s 

description[] and he broadcasted this identification information 

over the police radio. (N.T. Trial (Waiver) Vol. 1, pp. 27-32). 

Not long thereafter, Police Officer Michael Lewis saw a man 

between houses on the 1400 block of Allegheny Avenue who was 

wearing clothing matching those of the iPhone robber announced 

in Officer Herod’s radio broadcast (N.T. Trial (Waiver) Vol. 1, pp. 

33-35). He paid notice to the man because he appeared 

nervous and was banging on the door of 1417 Allegheny. About 

five minutes after Appellant entered this building, Officer Lewis 

went over, knocked on the door and a resident permitted him to 

enter. He then went to the 2nd floor and knocked on the door 

and the Appellant opened it. The Appellant was wearing some 

type of pajamas, claiming he just got out of the shower. Officer 

Lewis noticed tan pants lying on a bed with a burgundy hoodie 

hanging on the wall (N.T. Trial (Waiver) Vol. 1, p. 36).
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Officer Lewis asked him to come downstairs and the 

Appellant agreed. Ms. Rucker, brought over in a police car 

apparently in the interim, identified the Appellant as the robber 

of her phone, while remaining in the police vehicle. (N.T. Trial 

(Waiver) Vol. 1, pp. 18-19). She also testified that the phone 

was not recovered and she paid $200 for a replacement.

Trial Court Opinion, 4/14/15, at 2-4.

Appellant was charged with robbery, conspiracy, theft by unlawful 

taking, and receiving stolen property. On October 24, 2014, the trial court 

convicted Appellant of robbery, theft by unlawful taking, and receiving stolen 

property. The trial court found Appellant not guilty of conspiracy. Also on 

that date, the trial court sentenced Appellant to a term of probation of two 

years for the robbery conviction and determined that the remaining 

convictions merged for purposes of sentencing. In addition, Appellant was 

sentenced to pay $200 in restitution. This appeal followed. Both Appellant 

and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

I. Is [Appellant] entitled to an Arrest of Judgment on the charge 

of Robbery and any and all other charges that merged with 

Robbery including Receiving Stolen Property where the evidence 

was insufficient to sustain the verdict as the Commonwealth 

failed to prove that [Appellant] was the perpetrator of the crime 

and alternately failed to prove that a Robbery had actually 

occurred?

Appellant’s Brief at 3. In this sole issue purporting to challenge the 

sufficiency of the evidence, Appellant argues that (a) the trial court should 

have found credible Appellant’s evidence regarding his alibi that he was at 
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work when the robbery took place, and the trial judge erred in failing to 

accept the evidence, Appellant’s Brief at 12-19, and (b) the Commonwealth 

failed to prove an element of the crime of robbery. Appellant’s Brief at 19-

23.

A sufficiency of the evidence review, however, does not include an 

assessment of the credibility of the testimony. Commonwealth v. Wilson, 

825 A.2d 710, 713-714 (Pa. Super. 2003). Such a claim is more properly 

characterized as a weight of the evidence challenge. Id. A challenge to the 

weight of the evidence questions which evidence is to be believed. 

Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). 

Indeed, claims challenging the weight of the evidence and sufficiency of the 

evidence are clearly distinct. See Commonwealth v. Widmer, 744 A.2d 

745 (Pa. 2000) (discussing the distinctions between a claim challenging the 

sufficiency of the evidence and a claim that the verdict is against the weight 

of the evidence). “A true weight of the evidence challenge concedes that 

sufficient evidence exists to sustain the verdict but questions which evidence 

is to be believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. 

Super. 2006) (quoting Commonwealth v. Galindes, 786 A.2d 1004, 1013 

(Pa. Super. 2001)).

In Commonwealth v. Grahame, 482 A.2d 255, 259 (Pa. Super. 

1984), we made the following observation regarding challenges to the 
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identity of the perpetrator of a crime being an attack on the weight of the 

evidence:

Proof beyond a reasonable doubt of the identity of 

the accused as the person who committed the crime 

is essential to a conviction. Commonwealth v. 

Reid, 123 Pa. Super. 459, 187 A 263 (1936). The 

evidence of identification, however, needn’t be 

positive and certain in order to convict, although any 

indefiniteness and uncertainty in the identification 

testimony goes to its weight. Commonwealth v. 

Mason, 211 Pa. Super. 328, 236 A.2d 548 (1967).

Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564, 

566 (1973). (Emphasis in original).

Grahame, 482 A.2d at 259. Accordingly, we will consider the first part of 

Appellant’s issue as being one challenging the weight of the evidence. As 

previously stated, although sufficiency and weight claims are distinct, 

Appellant addressed both issues in a single intermingled argument in his 

brief to this Court. Appellant’s Brief at 12-23. We will address the claims 

separately.

We begin with Appellant’s challenge to the weight of the evidence to 

support the determination of his identity as the perpetrator of the crime in 

light of his alibi claim. However, Appellant has failed to preserve a challenge 

to the weight of the evidence for our review. Pa.R.Crim.P. 607 and its 

comment instruct that in order to preserve for appellate review a claim that 

a verdict is against the weight of the evidence, the issue must be raised with 

the trial judge in a motion for a new trial either orally or in writing prior to 

sentencing, or in a post-sentence motion. Pa.R.Crim.P. 607. Here, 
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Appellant never filed with the trial court an oral or written motion for a new 

trial prior to sentencing, or a post-sentence motion challenging the weight of 

the evidence. Accordingly, we conclude that the issue challenging the 

weight of the evidence is waived. See Pa.R.Crim.P. 607; Commonwealth 

v. Butler, 729 A.2d 1134, 1140 (Pa. Super. 1999) (holding that a challenge 

to the weight of the evidence is waived for failure to present the issue first 

to the trial court).

Even if we were to ignore the waiver of the weight claim and address 

the issue, we would conclude that there is no basis for relief. In 

Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme Court set 

forth the following standards to be employed in addressing challenges to the 

weight of the evidence:

A motion for a new trial based on a claim that the verdict 

is against the weight of the evidence is addressed to the 

discretion of the trial court. Commonwealth v. Widmer, 560 

Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); 

Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 

1189 (1994). A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. Widmer, 560 

A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial 

judge is to determine that ‘notwithstanding all the facts, certain 

facts are so clearly of greater weight that to ignore them or to 

give them equal weight with all the facts is to deny justice.’” Id. 

at 320, 744 A.2d at 752 (citation omitted). It has often been 

stated that “a new trial should be awarded when the jury’s 

verdict is so contrary to the evidence as to shock one’s sense of 

justice and the award of a new trial is imperative so that right 

may be given another opportunity to prevail.” Brown, 538 Pa. 

at 435, 648 A.2d at 1189.
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An appellate court’s standard of review when presented 

with a weight of the evidence claim is distinct from the standard 

of review applied by the trial court:

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. Brown, 648 A.2d at 1189. 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. Commonwealth v. 

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 

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.

Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis 

added).

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:

The 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.
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Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. 

S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-

[11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the least assailable of its 

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

As previously stated, Appellant challenges the trial court’s 

determination of the credibility of the alibi evidence presented by Appellant 

as opposed to the testimony of the victim and other Commonwealth 

witnesses. Appellant’s Brief at 12-19. The trial judge, sitting as the finder 

of fact, chose to believe the evidence presented by the Commonwealth and 

to disregard the evidence presented by Appellant, as was his right. As the 

trial court aptly explained:

In the present matter, this Court found the testimony of 

the victim credible particularly her accurate description of the 

Appellant which was given to the police prior to the police 

investigation and the eventual arrest of the Appellant. The 

[victim’s] testimony is supported by the police testimony related 

to finding and apprehending the Appellant.

This Court did not find the Appellant credible. This Court 

discounted his sole defense that it was physically impossible for 

the Appellant to have robbed Ms. Rucker because this defense 

rests completely on the unfounded assumption that the various 

clocks at the Rite Aid and SEPTA were synchronized down to the 

exact minute. Further, as already stated, Ms. Rucker’s 

eyewitness testimony identifying the Appellant as the thief down 

to the color of his garments was compellingly credible. The 

Court found Ms. Rucker’s testimony credible and that of the 

police. The Court credited police testimony as to the time of the 

crime. (N.T. Waiver Trial Vol. 2, pp. 51).
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Trial Court Opinion 4/14/15, at 8. Thus, we decline Appellant’s invitation to 

assume the role of fact finder and reweigh the evidence. Accordingly, had 

we addressed the merits of this claim, we would conclude that the trial court 

did not abuse its discretion in determining that Appellant’s weight of the 

evidence claim lacks merit.

We will next consider Appellant’s claim regarding the sufficiency of the 

evidence. Specifically, Appellant argues the Commonwealth failed to prove 

he committed the crime of robbery because the Commonwealth failed to 

prove Appellant took the victim’s phone with the necessary use of force. 

Appellant’s Brief at 19-23. We disagree.

When reviewing challenges to the sufficiency of the evidence, we 

evaluate the record in the light most favorable to the Commonwealth as 

verdict winner, giving the prosecution the benefit of all reasonable inferences 

to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d 

226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed 

sufficient to support the verdict when it establishes each material element of 

the crime charged and the commission thereof by the accused, beyond a 

reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d 

1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not 

establish guilt to a mathematical certainty, and it may sustain its burden by 

means of wholly circumstantial evidence. Id. Moreover, this Court may not 

substitute its judgment for that of the fact finder, and where the record 
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contains support for the convictions, they may not be disturbed. Id. Lastly, 

we note that the finder of fact is free to believe some, all, or none of the 

evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. 

Super. 2006).

We proceed to address Appellant’s claim that the evidence was 

insufficient to convict him of robbery. Pursuant to 18 Pa.C.S. § 

3701(a)(1)(v), “[a] person is guilty of robbery if, in the course of committing 

a theft, he . . . physically takes or removes property from the person of 

another by force however slight.” The force sufficient to establish a robbery 

may be either actual or constructive. Actual force is applied to the body, 

while constructive force is the use of threatening words or gestures and 

operates on the mind. Commonwealth v. Brown, 484 A.2d 738, 741 (Pa. 

1984). However, the amount of force need not be substantial, because 

“[a]ny amount of force applied to a person while committing a theft brings 

that act within the scope of the robbery statute.” Commonwealth v. 

Bedell, 954 A.2d 1209, 1213 (Pa. Super. 2008) (quoting Commonwealth 

v. Duffey, 548 A.2d 1178, 1182 (Pa. 1988)). “The degree of actual force is 

immaterial, so long as it is sufficient to separate the victim from his property 

in, on or about his body.” Bedell, 954 A.2d at 1213 (quoting Brown, 484 

A.2d at 741).

In support of his argument, Appellant cites the following three cases, 

in which this Court reversed robbery convictions upon a finding that the 
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requisite force was not employed. In Commonwealth v. Smith, 481 A.2d 

1352 (Pa. Super. 1984), the defendant was convicted of robbery under 

section 3701(a)(1)(v) after removing a pack of cigarettes from the pocket of 

a blind person who was unaware of the removal. Smith, 481 A.2d at 1353. 

This Court reversed, concluding that the evidence was insufficient to support 

the conviction because the defendant removed the property by stealth and 

not by force. Id. at 1353-1355.

In Commonwealth v. Windell, 529 A.2d 1115 (Pa. Super. 1987), the 

defendant was convicted of robbery under section 3701(a)(1)(v) after 

removing a coin purse from the victim’s person without the victim’s 

knowledge. Windell, 529 A.2d at 1115-1116. This Court, applying Smith, 

reversed because the crime was conducted by stealth, and the only force 

shown was “the force needed to take and carry away another person’s 

property.” Id. at 1117.

In Commonwealth v. Williams, 550 A.2d 579 (Pa. Super. 1988), the 

defendant was convicted of robbery under section 3701(a)(1)(v) after rolling 

an intoxicated, unconscious person onto his side and removing his wallet. 

Williams, 550 A.2d at 580. Relying on Smith and Windell, this Court 

reversed, concluding that because the victim was not aware of the force 

utilized to take the property, the defendant could not be convicted of 

robbery. See Williams, 550 A.2d at 582 (stating that “If the victim in this 

case had been aware of this force, a robbery conviction might have stood 
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based upon the possible distinction between the force used to roll the victim 

over, and the force used to remove the wallet.”). However, we conclude 

that these three cases are inapposite because the instant victim was fully 

aware of Appellant forcefully taking her possession.

As the trial court stated in its opinion:

In the instant matter, The Appellant in the process of 

stealing Ms. Rucker’s iPhone literally grabbed it out of her hand 

and then fled from the subway train. Her testimony alone 

proved all of the requisite elements of robbery. As such, based 

on the evidence brought forth at trial, the Commonwealth met 

its burden on sufficiency of the evidence.

Trial Court Opinion, 4/14/15, at 7.

Likewise, our review of the record, in the light most favorable to the 

Commonwealth, reflects ample evidence that Appellant used a sufficient 

amount of force to steal the iPhone from the victim, of which the victim was 

aware. At trial, the Commonwealth presented testimony from the victim 

that, while she was seated on the subway train and Appellant was standing, 

Appellant “snatched” the victim’s phone out of her right hand, fled the 

scene, and the victim then chased Appellant off of the subway train. N.T., 

9/29/14, at 12-13, 21-24. Therefore, the victim was fully aware of the 

taking of her phone. This evidence, which was found credible by the trial 

court sitting as the finder of fact, together with the inferences therefrom, 

was sufficient to prove beyond a reasonable doubt that Appellant removed 

property from the person of another by force, however slight. Hence, 
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Appellant’s action was sufficient to establish the crime of robbery and his 

contrary claim lacks merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2016