J-S13003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM THOMAS MILLENDER,

Appellant No. 1686 WDA 2013

Appeal from the Judgment of Sentence September 4, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): 

CP-02-CR-0013237-2011

CP-02-CR-0015480-2011

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 06, 2015

Appellant, William Thomas Millender, appeals from the judgment of 

sentence of an aggregate term of 31⁄2 to 7 years’ imprisonment, imposed 

after he was convicted of various counts of robbery, conspiracy, receiving 

stolen property and recklessly endangering another person.1 Appellant 

challenges the sufficiency of the evidence to sustain his convictions and 

alleges the verdict is against the weight of the evidence. We affirm. 

____________________________________________

1 Appellant was found guilty at CC Number 201115480 of one count each of 

robbery (18 Pa.C.S. § 3701(a)(1)(i)), conspiracy (18 Pa.C.S. § 903(c)), 

receiving stolen property (18 Pa.C.S. § 3925(a)), and recklessly endangering 

another person (18 Pa.C.S. § 2705). Furthermore, Appellant was found 

guilty at CC Number 201113237 of one count of robbery (18 Pa.C.S. § 

3701(a)(1)(i)) and one count of conspiracy (18 Pa.C.S. § 903(c)). CC Nos. 

201115480 and 201113237 were joined by the trial court for trial.
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Appellant’s convictions stemmed from two robberies that occurred 

within approximately 7 hours of each other, involving the same coconspirators. Following a non-jury trial, Appellant was sentenced to the 

above-stated term on September 4, 2013. He filed a timely notice of 

appeal, followed by a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).2 Herein, Appellant presents two issues for 

our review, which we summarize as follows: (1) Was the evidence sufficient 

to support the conviction at CC Number 201113237, where the evidence 

failed to establish that Appellant entered into any agreement to commit 

robbery, or that he committed an overt act in furtherance of a conspiracy, 

but only that he was present at the scene and allegedly acquainted with the 

perpetrator; and (2) Did the trial court abuse its discretion when it denied 

Appellant’s post-sentence motion, challenging the weight of the evidence, as 

____________________________________________

2 The court entered an order on October 28, 2013, directing a statement of 

matters complained of on appeal to be filed within 21 days pursuant to Rule 

1925(b). Appellant’s Rule 1925(b) statement was filed on November 20, 

2013, which appears on its face to be untimely. However, the trial court 

does not acknowledge the untimeliness of the Rule 1925(b) statement. 

Rather, the trial court treats the Rule 1925(b) statement as timely and 

addresses the merits of the issues raised by Appellant in its Rule 1925(a) 

opinion. We will, therefore, overlook the untimeliness of the Rule 1925(b) 

statement and address the merits of the issues presented on appeal. See 

Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) 

(“When counsel has filed an untimely Rule 1925(b) statement and the trial 

court has addressed those issues we need not remand and may address the 

merits of the issues presented.”).
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the identifications of Appellant were so unreliable that they should not have 

been afforded any weight? See Appellant’s Brief, at 6.

To begin, we note our standard of review of a challenge to the 

sufficiency of the evidence:

In 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. Moreno, 14 A.3d 

133 (Pa. Super. 2011) Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

Appellant challenges the sufficiency of evidence to support his 

conviction of robbery under 18 Pa.C.S. § 3701(a)(1)(v), which states: “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.” Additionally, Appellant challenges the sufficiency of the 

evidence to sustain his conviction of conspiracy to commit robbery. A 

conviction of criminal conspiracy requires proof “that the defendant (1) 

entered into an agreement to commit or aid in an unlawful act with another 

person or persons, (2) with a shared criminal intent[,] and (3) an overt act 

was done in furtherance of the conspiracy.” Commonwealth v. McCall, 

911 A.2d 992, 996 (Pa. Super. 2006) (citing Commonwealth v. Hennigan, 
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753 A.2d 245, 253 (Pa. Super. 2000)). “This overt act need not be 

committed by the defendant; it need only be committed by a coconspirator.” Id. (quoting Commonwealth v. Hennigan, 753 A.2d at 

253.)

Before addressing whether the elements of the above-stated crimes 

have been met, we review the facts of the incidents which led to Appellant’s 

convictions, as set forth by the trial court in the following portion of its Rule 

1925(a) opinion:

At trial, Mr. Landon Thomas testified that he was on the 

way home from work when he was confronted by three men 

near the Wilkinsburg bus way. One of the men pulled a gun and 

demanded his phone. All three men pulled Mr. Thomas to the 

side of a building, checked his wallet, and took change and his 

transit, along with his cell phone. Mr. Thomas said he was 

scared, as it was the first time ever that a gun was pulled on 

him. Mr. Thomas also testified that his Oakland raiders hat was 

taken, which he was wearing at the time.... The man with the 

gun took it off [Mr. Thomas’] head and gave it to his accomplice. 

The gunman put the gun in Mr. Thomas’ face and told him to 

“get up the street before I shoot you in the face” as the three 

men went toward the bus way. Mr. Thomas recognized the 

phone depicted in a photo, Exhibit 9, as being the one taken 

from him that night.

In photo Exhibit 7, Mr. [Thomas] identified the man who 

was wearing his Raiders hat, who helped go through the process 

of checking the victim’s pockets and ba[g]. Mr. [Thomas] 

walked home after the robbery and called police, who responded 

and took him to the crime scene, and later to the police station. 

[Appellant] was identified as being the person who “assisted the 

guy with the firearm[,”] and who was wearing the victim’s hat.

The Commonwealth next called Norman Beasley, [a 

minister]... who testified that at approximately 4:00 a.m. on 

September 30, 2011, he was in the area of East Liberty Circle 

and Penn Avenue. He observed three young men cross the 
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street toward him, and he in turn, decided to cross the street to 

get away from the[m]. Mr. Beasley was punched from behind in 

a dark area of the street by a young man who then took [Mr.] 

Beasley’s cell phone, which had fallen to the ground. Mr. 

Beasley asked for his phone back, and then observed two (2) 

other men standing near the entrance to a nearby Target store, 

one of [whom] was [Appellant]. The man who took the phone 

then ran toward [Appellant] and the other man at the Target 

store and all three (3) took off together. Mr. Beasley flagged 

down a passing police car and the officer placed him in his car 

after [Mr.] Beasley related what happened earlier. The officer 

drove toward a Giant Eagle grocery store where three (3) 

individuals were confronted and apprehended. Mr. Beasley 

confirmed that the three (3) men, one of whom was [Appellant], 

were the same individuals who took his phone and ran from him. 

Several hours later, Mr. Beasley’s phone was recovered from 

underneath a car parked in a lot approximately fifty yards from 

the Giant Eagle store where [Appellant] was apprehended earlier 

that morning. 

Trial Court Opinion (TCO), 10/20/14, at 3-5 (citations to the record 

omitted).

The trial court also details the following evidence and stipulations 

made by Appellant at trial that it considered in reaching its verdict:

At trial, the [c]ourt considered as evidence a video of the East 

Bus Way Station in Wilkinsburg, identifying [Appellant], William 

Millender, and two other individuals, Steven Wallace and 

Roderick Cook getting on a westbound bus on September 29, 

2011 between 9:08 p.m. and 9:22 p.m. [Appellant’s] counsel 

stipulated to the identity of [Appellant]. Another stipulation was 

reached that [Appellant] appeared in photos introduced as 

Commonwealth exhibits 2 through 8. Another stipulation was 

reached that City of Pittsburgh Police Officer Dominic Nino 

recovered a pink Blackberry from the person of Steven Wallace 

at approximately 4:30 a.m. on September 30, 2011 near Penn 

Avenue in the Shadyside-East Liberty neighborhood.

TCO, at 3 (citations to the record omitted).
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On appeal, Appellant solely challenges the sufficiency of the evidence 

to sustain his conspiracy conviction related to the robbery of Mr. Beasley. 

Specifically, he avers that the Commonwealth failed to prove that “[he]

entered into an agreement to take [Mr.] Beasley’s cell phone, or commit an 

overt act in furtherance of a conspiracy.” Appellant’s Brief, at 16. Appellant 

further contends that he was merely present at the scene, and that mere 

presence at the scene of a crime is insufficient to establish conspiracy. Id.

“The Commonwealth is not required to establish the existence of a 

conspiracy by direct proof of an explicit or formal agreement.” 

Commonwealth v. Roux, 350 A.2d 867, 870 (Pa. 1976). “[W]hile more 

than mere association must be shown, ‘[a] conspiracy may be inferentially 

established by showing the relation, conduct or circumstances of the parties, 

and the overt acts on the part of co-conspirators have uniformly been held 

competent to prove that a corrupt confederation has in fact been formed....’” 

Id. (quoting Commonwealth v. Horvath, 144 A.2d 489, 492 (Pa. Super. 

1958)). Furthermore:

mere presence at the scene of a crime and knowledge of the 

commission of criminal acts is not sufficient [to establish a 

conspiracy]. Nor is flight from the scene of a crime, without 

more, enough. However, such factors, combined with other 

direct or circumstantial evidence, may provide sufficient 

evidence sustaining [a conspiracy conviction].

In re V.C., 66 A.3d 341, 349-350 (Pa. Super. 2013) (citing 

Commonwealth v. Knox, 50 A.3d 749, 756 (Pa. Super. 2012)).
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In the case at bar, we conclude that the totality of the evidence, 

viewed in the light most favorable to the Commonwealth, was sufficient to 

sustain Appellant’s convictions for robbery and conspiracy to commit 

robbery. Although Appellant asserts that he was not an active participant in 

the crime against Mr. Beasley, and that he was merely standing across the 

street during the incident, Appellant did actively participate in the robbery of 

Mr. Thomas. Appellant was identified as the man who searched through Mr. 

Thomas’ pockets and bag. TCO, at 4. Appellant stipulated to his identity in a 

bus station surveillance video near the scene of the robbery against Mr. 

Thomas just minutes after the robbery took place. Id. at 3. In the video, he 

was wearing the hat stolen from Mr. Thomas. Appellant was present at the 

bus station with his co-conspirators, Mr. Wallace and Mr. Cook, and 

Appellant remained with his co-conspirators hours later at the scene of the 

robbery against Mr. Beasley. Id. at 3, 4. We especially emphasize the fact 

that Mr. Beasley testified that after he was robbed by Appellant’s cohort, 

Appellant fled the crime scene with Mr. Wallace and Mr. Cook. Id. at 4. 

Additionally, when police apprehended Appellant and his co-conspirators 

shortly after the Beasley robbery, Appellant was still wearing the Raiders hat 

which had been taken from Mr. Thomas during the prior incident. Id. at 4, 5. 

Taken as a whole, this evidence was sufficient to support the trial 

court’s finding that Appellant entered into an agreement with Mr. Wallace 

and Mr. Cook, that Appellant shared the criminal intent to rob Mr. Beasley, 

and that an overt act was committed in furtherance of the conspiracy. 
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Therefore, the trial court reasonably found that the elements of conspiracy 

were met.

Moreover, once it has been found that an agreement was entered into 

and that “the defendant intentionally entered into the agreement, that 

defendant may be liable for the overt acts committed in furtherance of the 

conspiracy regardless of which co-conspirator committed the act.” 

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (citation 

omitted). See also Commonwealth v. Figueroa, 859 A.2d 793, 798-799 

(Pa. Super. 2004) (citations omitted) (“Even if a defendant did not act as a 

principal in committing the underlying crime, . . . he is still criminally liable 

for the actions of the co-conspirator taken in furtherance of the 

conspiracy.”). Consequently, Mr. Beasley’s testimony that Appellant’s coconspirator took his cell phone after punching Mr. Beasley from behind 

supports Appellant’s conviction for robbery. 

Appellant next challenges the weight of the evidence to support his 

convictions. 

A claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether the 

verdict was against the weight of the evidence. 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, and a new trial 

based on a weight of the evidence claim is only warranted where 

the jury’s verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the trial judge’s 

discretion was properly exercised, and relief will only be granted 
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where the facts and inferences of record disclose a palpable 

abuse of discretion. 

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations 

and internal quotation marks omitted). 

Here, Appellant’s basis for his weight of the evidence claim is that 

“[Mr.] Thomas’ only identification of [Appellant] was made for the first time 

on the day of trial, when he was the only defendant in the courtroom sitting 

next to defense counsel, and [Mr.] Thomas said he did not recognize 

[Appellant] when they were face to face at the preliminary hearing. 

Moreover, [Mr.] Beasley misidentified [Appellant] just minutes after the 

incident.” Appellant’s Brief, at 24.

The trial court considered the testimony presented at trial and found 

the testimony of the victims to be credible. TCO, at 5. “[O]n issues of 

credibility and weight of the evidence, an appellate court defers to the 

findings of the trial judge, who has had the opportunity to observe the 

proceedings and demeanor of the witnesses.” Commonwealth v. 

Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). The trial court, as fact 

finder, concluded that the elements of robbery and conspiracy to commit 

robbery were proven beyond a reasonable doubt, and that Appellant 

committed these offenses. TCO, at 5. We ascertain no abuse of discretion in 

the trial court’s denial of Appellant’s challenge to the weight of the evidence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015
Circulated 03/12/2015 01:19 PM
Circulated 03/12/2015 01:19 PM
Circulated 03/12/2015 01:19 PM
Circulated 03/12/2015 01:19 PM