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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 October 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 after a jury convicted him 

of robbery and related offenses. Appellant challenges the legality of his 

sentence, as well as the sufficiency of the evidence 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, testified that 

on November 2, 2013, he was walking home at approximately 

2:00 a.m. Prior to walking home, Mr. Chelcher was attending 

the Country Fair. After leaving the fair, a red truck approached 

Mr. Chelcher. The red truck continued toward Mr. Chelcher and 

forced him “off the curb.” The passenger, later identified as 

[Appellant], jumped out of the truck, and Mr. Chelcher saw the 

[Appellant] with a gun. Mr. Chelcher testified that he attempted 

to run; however, he tripped. [Appellant] ..., now standing over 

Mr. Chelcher, put the gun to the victim’s face and said he was 
J-S54001-16 

- 2 - 

going to kill him. Next, [Appellant] demanded [that] Mr. 

Chelcher give him everything he had on his person. Mr. 

Chelcher complied and surrendered his wallet and pocket 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 robbery, November 

2, 2013, Mr. Perry and [Appellant] agreed to rob somebody with 

a gun. During the trial, Mr. Perry described the events 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 robbery, 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 Appellant of robbery (threat 

of immediate serious bodily injury), 18 Pa.C.S. § 3701(a)(1)(ii); conspiracy 

to commit robbery, 18 Pa.C.S. § 903; robbery (taking property from another 

by force), 18 Pa.C.S. § 3701(a)(1)(v); possession of 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 simple assault, 18 Pa.C.S. § 

2701(a)(3). On October 28, 2014, Appellant was sentenced to an aggregate 

term of 5 to 15 years’ imprisonment. 

 Appellant filed a timely notice of appeal on November 25, 2014.1 

Appellant also timely complied with the trial court’s order to file a Pa.R.A.P. 

____________________________________________ 

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 

- 3 - 

1925(b) concise statement of errors complained of on appeal. Herein, 

Appellant presents two issues for our review: 

1. Whether the court erred as a matter of law or abused its 

discretion when the court made a finding that [Appellant] used a 

deadly weapon to enhance the sentence, when the jury made no 

finding that [Appellant] used a deadly weapon nor was 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 the victim. 

Appellant’s Brief at 5. 

 Appellant first contends that his sentence is illegal because the court 

applied the Deadly Weapon Enhancement (DWE), despite 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 considered elements of the 

underlying crime, and thus, to comply with the dictates of the Sixth 

Amendment, [those sentencing factors] must be submitted 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 the DWE: 
J-S54001-16 

- 4 - 

Alleyne and Apprendi dealt with factors that either increased 

the mandatory minimum sentence or increased the prescribed 

sentencing range beyond the statutory maximum, respectively. 

Our case[, in which the court applied the DWE,] does not involve 

either situation; instead, we are dealing with a sentencing 

enhancement. If the enhancement applies, the sentencing court 

is required to raise the standard guideline range; however, the 

court retains the discretion to sentence outside the guideline 

range. Therefore, neither of the situations addressed 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 at hand” in that case. 

Appellant’s Brief at 10. While we agree with Appellant,2 we nevertheless find 

the Buterbaugh panel’s rationale persuasive and convincing. Therefore, 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 evidence was 

insufficient to support his robbery conviction. 

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. 

____________________________________________ 

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 

- 5 - 

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, as defined by 18 

Pa.C.S. § 3701(a)(1)(ii), which states that “[a] person is guilty of robbery if, 

in the course of committing a theft, he: ... threatens 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 evidence of threat or assault 

from ... [A]ppellant....” Appellant’s Brief at 11. 

 Again, we disagree with Appellant. Our Supreme Court has held that 

“an acquittal cannot be interpreted as a specific finding in relation to some of 

the evidence, and that even where two verdicts are logically inconsistent, 

such inconsistency alone cannot be grounds for a new 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 evidence is sufficient to 

support [it].” Id. at 1208 (citations omitted). Here, Appellant’s threatening 

to kill Mr. Chelcher while placing a gun to his face reasonably placed Mr. 

Chelcher in fear of “immediate serious bodily injury” 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 robbery was a “BB gun 

revolver.” N.T. Trial, 10/21/14, at 17. However, the Commonwealth’s 

evidence demonstrated that the gun closely resembled an actual firearm. 

(Footnote Continued Next Page) 
J-S54001-16 

- 6 - 

A.2d 910, 914–15 (Pa. Super. 2000) (stating “[t]he threat posed by the 

appearance of a firearm is calculated to inflict fear 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 defendant visibly brandished a 

firearm”). Accordingly, Appellant’s challenge to the 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 testifying 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 DWE, or on the sufficiency of 

the evidence to support his robbery conviction.