J-S54001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. SHANE BERNARD VITKA, JR., Appellant No. 1985 WDA 2014 Appeal from the Judgment of Sentence Entered Octobe r 28, 2014

In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000262-2014
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 24, 2016 Appellant, Shane Bernard Vitka, Jr., appeals from the judgment of sentence of 5 to 15 years’ incarceration, imposed a fter a jury convicted him of robbery and related offenses. Appellant challen ges the legality of his sentence, as well as the sufficiency of the evidenc e to sustain his robbery conviction. We affirm. The trial court summarized the evidence presented at Appellant’s trial, as follows: During the trial, Andy Chelcher, the victim, testif ied that on November 2, 2013, he was walking home at approxi mately 2:00 a.m. Prior to walking home, Mr. Chelcher was attending the Country Fair. After leaving the fair, a red tr uck approached Mr. Chelcher. The red truck continued toward Mr. C helcher and forced him “off the curb.” The passenger, later id entified as [Appellant], jumped out of the truck, and Mr. Chelc her saw the [Appellant] with a gun. Mr. Chelcher testified tha t he attempted to run; however, he tripped. [Appellant] ..., now st anding over Mr. Chelcher, put the gun to the victim’s face and said he wasJ-S54001-16

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going to kill him. Next, [Appellant] demanded [tha t] Mr. Chelcher give him everything he had on his person. Mr. Chelcher complied and surrendered his wallet and po cket knife. [Appellant] proceeded to reenter the red truck and [it] departed. [The jury] also heard testimony from Dusty Perry, the driver of the red truck. On the night of the robbe ry, November 2, 2013, Mr. Perry and [Appellant] agreed to rob so mebody with a gun. During the trial, Mr. Perry described the e vents of the robbery, specifically [Appellant’s] jumping out of the car, chasing after Mr. Chelcher, and reentering the vehicle with [the] gun. Mr. Perry also testified that, directly after the r obbery, he saw [Appellant] with Andy Chelcher’s wallet and pocket knife. Trial Court Opinion (TCO), 8/27/15, at 6 (citations to the record omitted). Based on this evidence, the jury convicted Appellan t of robbery (threat of immediate serious bodily injury), 18 Pa.C.S. § 3 701(a)(1)(ii); conspiracy to commit robbery, 18 Pa.C.S. § 903; robbery (takin g property from another by force), 18 Pa.C.S. § 3701(a)(1)(v); possession o f a weapon, 18 Pa.C.S. § 907(b); and theft by unlawful taking, 18 Pa.C.S. § 3921(a). Pertinent to this appeal, Appellant was found not guilty of simp le assault, 18 Pa.C.S. § 2701(a)(3). On October 28, 2014, Appellant was sen tenced to an aggregate term of 5 to 15 years’ imprisonment. Appellant filed a timely notice of appeal on Novem ber 25, 2014. 1 Appellant also timely complied with the trial court ’s order to file a Pa.R.A.P.

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1 The disposition of Appellant’s appeal was delayed due to this Court’s not receiving the certified record from the trial court until March of 2016.J-S54001-16

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1925(b) concise statement of errors complained of o n appeal. Herein, Appellant presents two issues for our review:
1. Whether the court erred as a matter of law or ab used its discretion when the court made a finding that [Appe llant] used a deadly weapon to enhance the sentence, when the jur y made no finding that [Appellant] used a deadly weapon nor w as a question[] posed to the jury [on] whether a deadly weapon was used. 2. Whether there was sufficient evidence to convict [Appellant] of robbery when the evidence showed no assault on t he victim. Appellant’s Brief at 5. Appellant first contends that his sentence is ille gal because the court applied the Deadly Weapon Enhancement (DWE), despit e that the jury did not make a determination that Appellant possessed a deadly weapon, thus violating the rules set forth in Alleyne v. United States , 133 S.Ct. 2151 (2013), and Apprendi v. New Jersey , 530 U.S. 466 (2000). We disagree. In Commonwealth v. Buterbaugh , 91 A.3d 1247 (Pa. Super. 2014) ( en banc ), appeal denied , 104 A.3d 1 (Pa. 2014), this Court explained that, “[i]n both [ Alleyne and Apprendi ,] the Supreme Court determined that certain sentencing factors were con sidered elements of the underlying crime, and thus, to comply with the dict ates of the Sixth Amendment, [those sentencing factors] must be submi tted to the jury and proven beyond a reasonable doubt instead [of] being determined by the sentencing judge.” Buterbaugh , 91 A.3d at 1270 n.10. The Buterbaugh panel then explained that the rules announced in Alleyne and Apprendi are irrelevant to a sentencing court’s application of t he DWE:J-S54001-16

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Alleyne and Apprendi dealt with factors that either increased the mandatory minimum sentence or increased the pre scribed sentencing range beyond the statutory maximum, resp ectively. Our case[, in which the court applied the DWE,] doe s not involve either situation; instead, we are dealing with a se ntencing enhancement. If the enhancement applies, the senten cing court is required to raise the standard guideline range; however, the court retains the discretion to sentence outside th e guideline range. Therefore, neither of the situations address ed in Alleyne and Apprendi

are implicated. Buterbaugh , 91 A.3d at 1270 n.10. Appellant cursorily argues that this Court is not bound to follow Buterbaugh’s reasoning because the above-quoted language was set forth in a footnote and was not pertinent to the “issue a t hand” in that case. Appellant’s Brief at 10. While we agree with Appel lant, 2 we nevertheless find the Buterbaugh panel’s rationale persuasive and convincing. There fore, we conclude that the trial court’s application of the DWE did not violate Alleyne

or Apprendi , and did not render Appellant’s sentence illegal. In Appellant’s second issue, he argues that the ev idence was insufficient to support his robbery conviction.

In reviewing a sufficiency of the evidence claim, w e must determine whether the evidence admitted at trial, a s well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficien t to support all elements of the offense. Commonwealth v. Moreno , 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not re weigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell , 988 A.2d 141 (Pa. Super.

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2 See Hunsberger v. Bender , 180 A.2d 4, 6 (Pa. 1962) (finding that a statement in a prior opinion, which clearly was not decisional but merely dicta , is not binding precedent).J-S54001-16

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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 his conviction for robbery, a s defined by 18 Pa.C.S. § 3701(a)(1)(ii), which states that “[a] pe rson is guilty of robbery if, in the course of committing a theft, he: ... threaten s another with or intentionally puts him in fear of immediate serious bodily injury[.]” Appellant contends that because the jury acquitted him of simple assault, there could be “no robbery since there was no evide nce of threat or assault from ... [A]ppellant....” Appellant’s Brief at 11. Again, we disagree with Appellant. Our Supreme Co urt has held that “an acquittal cannot be interpreted as a specific f inding in relation to some of the evidence, and that even where two verdicts are logically inconsistent, such inconsistency alone cannot be grounds for a ne w trial or for reversal.” Commonwealth v. Miller , 35 A.3d 1206, 1213 (Pa. 2012). Instead, a conviction is “allowed to stand so long as the evid ence is sufficient to support [it].” Id. at 1208 (citations omitted). Here, Appellant’s thr eatening to kill Mr. Chelcher while placing a gun to his fac e reasonably placed Mr. Chelcher in fear of “immediate serious bodily injur y” so as to satisfy that aspect of section 3701(a)(1)(ii). 3 See Commonwealth v. Hopkins , 747

____________________________________________ 3 We note that the gun Appellant used during the rob bery was a “BB gun revolver.” N.T. Trial, 10/21/14, at 17. However, the Commonwealth’s evidence demonstrated that the gun closely resemble d an actual firearm. (Footnote Continued Next Page)J-S54001-16

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A.2d 910, 914–15 (Pa. Super. 2000) (stating “[t]he threat posed by the appearance of a firearm is calculated to inflict fe ar of deadly injury , not merely fear of ‘serious bodily injury [,]’ and thus, the “factfinder is entitled to infer that a victim was in mortal fear when a defen dant visibly brandished a firearm”). Accordingly, Appellant’s challenge to t he sufficiency of the evidence is meritless. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/24/2016

(Footnote Continued) _______________________ See id. at 6 (Mr. Chelcher’s testifying that the gun looked like a “[b]lack handgun”); id. at 62 (Oil City Police Officer Robert Culp’s testif ying that the BB gun was “modeled after” a “.44 Magnum” and “look [ed] [more] like an actual firearm” than any other “pellet pistol” the officer had previously seen). Additionally, Appellant does not argue that his use of a BB gun has any implication on the court’s application of the D WE, or on the sufficiency of the evidence to support his robbery conviction.