J-S77034-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

TERON UTSEY,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1676 EDA 2014

Appeal from the Judgment of Sentence Entered April 28, 2014,

in the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0003508-2012

BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 05, 2015

Teron Utsey (Appellant) appeals from the judgment of sentence 

entered on April 28, 2014, following his conviction for burglary and 

conspiracy to commit robbery. We affirm.

The trial court summarized the underlying facts of this matter as 

follows:

Appellant’s convictions arose out of an early morning 

brutal home invasion. On March 26, 2011, Appellant and several 

co-conspirators agreed that they would ste[a]l money and pills 

from the victim, Scott Hopper, at his residence located at 145 

East Moreland Avenue, Hatboro, Montgomery County. Appellant 

was armed with a semi-automatic gun and a co-conspirator was 

armed with a crow-bar. The victim sustained serious injuries.

On January 22, 2014, Appellant’s trial commenced. At 

trial, the Commonwealth presented the testimony of two 

investigating police officers, Sergeant Mark Ru[e]gg and 

Detective Sergeant Cameron Goold[;] the victim, Scott 

Hopper[;] and two of Appellant’s co-conspirators, Michael 
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Wroblewski ([Wroblewski]) and Troy Schussler ([Schussler]). 

After the evidence was presented, the jury returned a verdict of 

guilty of burglary and conspiracy, and not guilty of robbery, 

terroristic threats and firearms not to be carried without a 

license.

On April 28, 2014, [the trial court] sentenced Appellant. A 

timely post-sentence motion was filed, and ultimately denied on 

May 8, 2014. This appeal followed on May 28, 2014.

Trial Court Opinion, 6/16/2014, at 1-2.

Appellant presents the following issues for our consideration:

[1.] Whether the evidence presented at trial was insufficient as 

a matter of law to establish beyond a reasonable doubt 

that ... Appellant entered the premises of Scott Hopper 

with the intent to commit a crime therein and /or the 

weight of the evidence presented demonstrated a 

reasonable doubt to whether [Appellant] had committed 

the crimes charged and the court committed an error of 

law and abuse of discretion in finding [Appellant] guilty of 

the crimes charged.

[2.] Whether the trial court committed an error of law and/or 

abuse of discretion in giving a flight/consciousness of guilt 

jury instruction based upon the fact that [Appellant] had 

removed a GPS ankle monitor and had failed to appear at 

a court proceeding.

Appellant’s Brief at unnumbered page 4 (unnecessary capitalization and trial 

court answers omitted).

We consider Appellant’s sufficiency claim mindful of the following.

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 that the facts and circumstances 

established by the Commonwealth need not preclude every 
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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 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 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. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa. 

Super. 2008)).

At the time that Appellant committed the present crimes, burglary was 

defined as follows: “A person is guilty of burglary if he enters a building or 

occupied structure, or separately secured or occupied portion thereof, with 

intent to commit a crime therein, unless the premises are at the time open 

to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S. 

§ 3502(a) (superceded).

A conspiracy conviction requires proof of (1) an intent to 

commit or aid in an unlawful act, (2) an agreement with a coconspirator and (3) an overt act in furtherance of the conspiracy. 

Because it is difficult to prove an explicit or formal agreement to 

commit an unlawful act, such an act may be proved inferentially 

by circumstantial evidence, i.e., the relations, conduct or 

circumstances of the parties or overt acts on the part of the coconspirators. 

Commonwealth v. Poland, 26 A.3d 518, 521 (Pa. Super. 2011) (quoting 

Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001)). 
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The offense underlying the conspiracy was robbery, “which requires proof, in 

relevant part, that in the course of committing a theft, the defendant 

threatened another with or intentionally put another in fear of immediate 

serious bodily injury.” Commonwealth v. Tejada, __ A.3d __, 2015 WL 

62931, *3 n.4 (Pa. Super. filed January 6, 2015) (citing 18 Pa.C.S. 

§ 3701(a)(1)(ii)).

Appellant argues that “[t]he jury’s verdict in finding ... [Appellant] not 

guilty of robbery, terroristic threats and the firearms charge simple [sic] 

demonstrate[s] that the evidence was insufficient as a matter of law to find 

... Appellant guilty of burglary and conspiracy.” Appellant’s Brief at 

unnumbered page 7 (unnecessary capitalization omitted). Appellant fails to 

cite any legal authority in support of this claim, and we conclude that it is 

without merit. “Consistency in criminal verdicts is not necessary, and logical 

inconsistencies will not serve as grounds for reversal. Inconsistent verdicts 

are proper so long as the evidence is sufficient to support the convictions the 

jury has returned.” Commonwealth v. Maute, 485 A.2d 1138, 1145 (Pa. 

Super. 1984) (citation omitted).

The relevant testimony presented at trial is as follows. Wroblewski 

testified that on March 25, 2011, in the course of driving around and trying 

to figure out plans for the night, “KG” told Wroblewski and some others 

about “this guy that had some money and some drugs and stuff in his 

house.” N.T., 1/22/2014, at 49-51. They talked about the “whole 
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situation,” meaning the man with the money and pills, and Robert Johnson 

a/k/a “J” made some phone calls looking for someone with a gun. Id. at 47, 

51-52. After driving to various locations and retrieving a trash bag and a 

crowbar, the group continued to drive around until J could locate someone 

with a gun. Id. at 52-53. After J located someone, they went to a 

Starbucks parking lot in Doylestown, where J got out of the van to meet 

Appellant. Id. at 53. Subsequently, they followed Appellant back to his 

house. Id. at 54. When they arrived, Appellant got out of his car, got a gun 

from the trunk of his car, and put it in his waistband. Id. at 56-57. They 

proceeded to an upstairs bedroom in Appellant’s house, where they 

discussed “how it was going to go down” and grabbed stuff they needed, 

such as masks. Id. at 57-59. Appellant had changed into dark clothing. 

Id. at 59. Then, Appellant, Schussler, J, KG, and Wroblewski left for 

Horsham. Id. at 59-60.

Wroblewski further testified that once in Horsham, they parked down 

the street from Hopper’s home. Id. at 60-61. Wroblewski, KG, and 

Appellant got out of the van and walked up to Hopper’s home. Id. KG got 

into the house through a window, then opened the back door to let Appellant 

and Wroblewski inside the house. Id. at 62. Wroblewski waited by the back 

door for lookout, and KG and Appellant went upstairs. Id. Wroblewski 

heard two gunshots. Id. at 62-63.
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Schussler testified that after being turned away from a pub on the 

night in question, he and some others eventually met Appellant in front of a 

Starbucks in Doylestown. N.T., 1/23/2014, at 4-7. Then, Appellant got into 

Schussler’s van, and they went to Hatboro. Id. at 7. When they arrived, 

Appellant, KG, who had a crowbar, and Wroblewski got out of the vehicle, 

while Schussler and J remained in the vehicle. Id. at 7-8.

Schussler testified that after the men exited the vehicle, Schussler and 

J drove around the block, went to Wawa, and then parked at the end of the 

street. Id. at 8. While sitting in the vehicle, Schussler heard two or three 

loud bangs that sounded like gunshots. Id. After about 15 or 20 minutes, 

Wroblewski came out with a safe along with Appellant. Id. They left and 

went to Warminster, to Appellant’s house. Id. at 8-9. Schussler testified 

that, at his house, he saw Appellant with a semi-automatic type gun. Id. at 

10.

Hopper testified that on the night of March 25, 2011, his girlfriend 

went out while he stayed home and watched TV. N.T., 1/22/2014, at 32-33. 

He had gone to bed sometime after midnight and was startled awake by two 

fully masked intruders, one armed with a crowbar and one armed with a 

semi-automatic gun. Id. at 33-35. The masked intruders started yelling at 

Hopper, demanding money and a safe. Id. at 35. Hopper was in fear for his 

life and a struggle ensued, where Hopper was beaten about the head and 

body. Id. at 36-37. During the course of that struggle, two gunshots were 
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discharged into the ceiling by one of the masked men. Id. at 36. Hopper 

testified that the assailants took a safe with them. Id. at 38, 45.

This evidence, viewed in the light most favorable to the 

Commonwealth, establishes that Appellant participated in the planning of the 

invasion of Hopper’s home for money and drugs. Appellant supplied the gun 

and the masks and had dressed in dark clothing in preparation for the home 

invasion. Appellant then surreptitiously entered the house and participated 

in the attack of Hopper while demanding money and a safe. Based on the 

foregoing, it is clear that the Commonwealth proved the necessary elements 

of the crimes that Appellant challenges on appeal.

Appellant also argues that the verdicts were against the weight of the 

evidence. Our standard of review is well-settled:

The weight given to trial evidence is a choice for the factfinder. If 

the factfinder returns a guilty verdict, and if a criminal defendant 

then files a motion for a new trial on the basis that the verdict 

was against the weight of the evidence, a trial court is not to 

grant relief unless the verdict is so contrary to the evidence as to 

shock one’s sense of justice. 

When a trial court denies a weight-of-the-evidence motion, and 

when an appellant then appeals that ruling to this Court, our 

review is limited. It is important to understand we do not reach 

the underlying question of whether the verdict was, in fact, 

against the weight of the evidence. We do not decide how we 

would have ruled on the motion and then simply replace our own 

judgment for that of the trial court. Instead, this Court 

determines whether the trial court abused its discretion in 

reaching whatever decision it made on the motion, whether or 

not that decision is the one we might have made in the first 

instance. 
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Moreover, when evaluating a trial court’s ruling, we keep in mind 

that an abuse of discretion is not merely an error in judgment. 

Rather, it involves bias, partiality, prejudice, ill-will, manifest 

unreasonableness or a misapplication of the law. By contrast, a 

proper exercise of discretion conforms to the law and is based on 

the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (quoting 

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).

Appellant essentially argues that his convictions were based solely on 

the testimony of his co-conspirators, which the jury clearly did not believe as 

evidenced by his acquittals on other charges. Appellant also notes that 

there was no DNA evidence or other credible corroborating evidence 

establishing his guilt, particularly in light of those acquittals.

Appellant’s contention consists of nothing more than a variation of his 

unavailing sufficiency argument and a challenge to the credibility 

determinations made by the jury. It is well settled that the jury is “free to 

believe all, part, or none of the evidence and to determine the credibility of 

the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. 

Super. 2003).1 In concluding that the weight of the evidence supported the 

jury’s verdict, the trial court explained that Appellant attempted to attack 

 

1

In this regard, we disagree with Appellant’s contention that, as evidenced 

by the acquittals, the jury clearly disbelieved the co-conspirators’ testimony. 

See Commonwealth v. Maxwell, 421 A.2d 699, 702 (Pa. Super. 1980) 

(“The fact that the verdicts may be interpreted to reflect the jury’s disbelief 

of, or doubt about, some of the victim’s testimony concerning [one] incident 

does not mean that the jury could not believe the victim’s testimony 

concerning [another] incident. The jury was not required to find all of her 

testimony either worthy or unworthy of disbelief; it was entitled to believe 

all, part, or none of the testimony.”).
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the credibility of the co-conspirators at trial, but that “the evidence that the 

jury believed and to which both [Wroblewski] and [Schussler] were 

consistent on was that Appellant was involved in the planning and 

commission of the home invasion. Defense counsel’s attempts at attacking 

their credibility did not sway the jury.” Trial Court Opinion, 6/16/2014, at 9. 

We discern no abuse of discretion in the trial court’s determination and, 

thus, Appellant is not entitled to relief on his weight-of-the-evidence claim.

Finally, relying upon Commonwealth v. Babbs, 499 A.2d 1111 (Pa. 

Super. 1985), Appellant argues that it was improper for the trial court to 

give a flight/consciousness of guilt instruction on the basis that Appellant 

failed to appear for trial. Appellant contends that the stipulated evidence 

regarding his failure to appear did not show that he was attempting to avoid 

prosecution or hide from law enforcement.

We review jury instructions with deference to the trial court and may 

reverse the lower court only where it abused its discretion or committed an 

error of law. Commonwealth v. Hornberger, 74 A.3d 279, 282 (Pa. 

Super. 2013).

[W]hen reviewing jury instructions for error, the charge must be 

read as a whole to determine whether it was fair or prejudicial. 

The trial court has broad discretion in phrasing its instructions, 

and may choose its own wording so long as the law is clearly, 

adequately, and accurately presented to the jury for its 

consideration.

Id. at 283 (quoting Commonwealth v. Sepulveda, 55 A.3d 1108, 1141 

(Pa. 2012)).
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In Babbs, a panel of this Court observed:

The rule of law in this Commonwealth is that “[w]hen a person 

commits a crime, knows that he is wanted therefor, and flees or 

conceals himself, such conduct is evidence of consciousness of 

guilt, and may form the basis in connection with other proof 

from which guilt may be inferred.” This rule has not heretofore 

been expanded to permit an inference of guilt merely because a 

defendant has failed to appear for trial. A failure to appear on 

the day set for trial does not have the same connotation as prearrest flight or concealment and cannot be said to point 

unerringly to consciousness of guilt.

Babbs, 499 A.2d at 1113 (citations omitted) (quoting Commonwealth v. 

Coyle, 203 A.2d 782, 789 (1964)). Applying this rule to the facts before it, 

the Babbs Court held that the defendant’s absence did not suggest guilt:

In the instant case, appellant did not flee or conceal his 

whereabouts either prior to or at any time after arrest. After 

appellant had appeared on several occasions, he failed to appear 

on a continued trial date. He did not flee or conceal himself, 

however, and was found shortly thereafter at his known 

residence. He said that he had failed to appear on the continued 

trial date because of a dispute with his attorney. We perceive in 

these circumstances no basis for drawing an inference that 

appellant’s failure to appear on the continued trial date was 

attributable to a consciousness of guilt.

***

... There was not a necessary connection between a mere postarrest failure to appear for trial and consciousness of guilt. This 

is particularly true where, as here, the failure to appear was not 

accompanied by flight and the defendant did not move from or 

leave his known, permanent place of residence. Therefore, we 

will reverse and remand for a new trial free from the unavoidable 

prejudice caused by the irrelevant evidence that appellant had 

on an earlier occasion failed to appear for trial.

Babbs, 499 A.2d at 1114.
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Nevertheless, this Court has observed that a trial court could properly 

instruct a jury on consciousness of guilt under circumstances wherein a 

defendant’s failure to appear is accompanied by evidence of flight or 

concealment. For example, in Commonwealth v. Carter, 597 A.2d 1156 

(Pa. Super. 1991), this Court distinguished Babbs, explaining that in 

Carter,

[t]he Commonwealth’s evidence was not limited merely to 

appellant’s failure to appear when the case was called for trial. 

Rather, the Commonwealth’s evidence was that appellant had 

failed to appear for a scheduled trial date on July 5, 1978, that a 

bench warrant had been issued for his arrest, and that he had 

not been apprehended until July 20, 1979. On that date, 

moreover, appellant attempted to avoid apprehension by giving 

police a false name. This evidence was sufficient to permit an 

inference that appellant had fled, and/or concealed his 

whereabouts to avoid prosecution. On this basis, the trial court 

could properly instruct the jury that an adverse inference could 

be drawn. See and compare: Commonwealth v. Knox, 290 

Pa.Super. 104, 108 n. 3, 434 A.2d 151, 153 n. 3 (1981) 

(evidence of defendant’s failure to appear for trial and eventual 

apprehension four months later properly received to establish 

consciousness of guilt); Commonwealth v. Smith, 250 

Pa.Super. 460, 467-468, 378 A.2d 1239, 1243 (1977) 

(defendant’s flight from jurisdiction after posting bond was 

properly received as evidence of consciousness of guilt); 

Commonwealth v. Myers, 131 Pa.Super. 258, 264-265, 200 A. 

143, 146 (1938) (evidence of defendant’s failure to appear for 

trial, issuance of bench warrant for his arrest, efforts of police to 

locate him and his apprehension approximately six months later 

was properly received as evidence of consciousness of guilt; 

“flight” includes not only leaving the jurisdiction, but also any 

concealment to avoid arrest or prosecution).

Carter, 597 A.2d at 1160-61.

Here, we discern no error or abuse of discretion in the trial court’s 

decision to instruct the jury on flight/consciousness of guilt. The evidence 
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relevant to this issue was read to the jury in the form of the following 

stipulation:

On October 18, 2012, the defendant, Teron Utsey, was on 

bail for the current charges. A condition of bail was that he 

remain under house arrest. An individual under house arrest 

must wear a GPS monitoring device.

In March of 2013 it was determined that the GPS ankle 

bracelet had been removed from the defendant’s ankle. In 

September 2013 the defendant was apprehended in New York. 

N.T., 1/23/2014, at 41. 

The court’s instruction to the jury as it pertained to 

flight/consciousness of guilt was as follows:

You heard evidence by way of the stipulation that the 

defendant fled to avoid prosecution of this case. Generally 

speaking, when a crime has been committed and a person is 

charged with that offense, and flees the jurisdiction, such flight 

is a circumstance tending to prove that the person is conscious 

of guilt. Such flight or concealment does not show 

consciousness of guilt in every case. A person may flee for some 

other motive, and may do so even though innocent.

Whether the evidence of flight or concealment in this case 

should be looked at as tending to prove guilt depends upon the 

facts and circumstances of this case, and especially upon the 

motives that may have prompted the flight or concealment. You 

may not find a defendant guilty solely on the basis of evidence of 

flight.

N.T., 1/23/2014, at 58. 

The above stipulation established that Appellant was aware of the 

charges against him and was restricted to house arrest while awaiting trial. 

Moreover, the stipulation demonstrated that Appellant subsequently 

removed his GPS monitoring device and was apprehended outside of the 
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jurisdiction several months later. Based on the evidence of record, the trial 

court properly charged the jury on flight/consciousness of guilt.

Because none of Appellant’s issues warrants relief, we affirm his 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2015