J-S79024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAWAYNE WHITE

Appellant No. 1040 EDA 2015

Appeal from the Judgment of Sentence November 20, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005005-2014

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 06, 2016

Jawayne White appeals from the November 20, 2014 judgment of 

sentence entered in the Philadelphia County Court of Common Pleas 

following his bench trial convictions for robbery (inflicts bodily injury), 

recklessly endangering another person (“REAP”), simple assault, criminal 

conspiracy, theft by unlawful taking, and receiving stolen property.1 We 

conclude that the record as it comes to us does not contain sufficient 

evidence to support the conspiracy conviction and, therefore, vacate White’s 

conspiracy conviction. We affirm the judgment of sentence as to the 

remaining convictions. 

____________________________________________

1 18 Pa.C.S. §§ 3701(a)(1)(iv), 2705, 2701(a), 903(c), 3921(a), 

3925(a), respectively.
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The facts, as adopted by the trial court, are as follows:2

On September 9, 2014, this matter was tried before this 

Court. . . . .

[T]he complainant[] testified that on the evening of March 

12, 2014 at approximately 7:55 pm, he was on the 

northeast corner of North Marshall Street and Cecil B. 

Moore Avenue. At that time he had a cell phone in his 

hand and was using it to listen to music. Complainant 

then came in contact with [White], who he did not know. 

[White] was identified in the courtroom by [the 

complainant]. [White] had approached him from behind 

on the night in question. [White] asked [the complainant] 

“what kind of phone you got?” [White] then struck the 

complainant while standing in front of him and the 

complainant then put his phone in his pocket. Then 

[White] reached in the complainant’s pocket and took his 

phone.

The police came to the scene and told the complainant to 

go and get his father and come back. After returning, the 

complainant was taken to the hospital and seen in the 

emergency room. He missed two (2) weeks from school. 

Complainant [was] subsequently seen three times by a 

doctor. The phone that was taken cost approximately 

$100-$120. He never received the phone back.

On cross-examination, the complainant testified that 

[White] approached him. He did not have scratches on his 

fist (and was then shown D-1, which was a photo of his 

fist) nor did [he] attempt to track his phone down. On 

redirect, the complainant said that he did not activate his 

____________________________________________

2 Because the audio recording of the trial was of poor quality, a 

transcript could not be produced. Accordingly, pursuant to Pennsylvania 

Rule of Appellate Procedure 1923, White filed a statement in absence of 

transcript. The Commonwealth as appellee did not afford itself of the 

opportunity provided by Rule 1923 to “serve objections or propose 

amendments” to White’s statement. The trial court adopted in part and 

amended White’s statement. Trial Ct. Statement in Absence of Transcript 

Pursuant to Pa.R.A.P. 1923, 10/30/2015, at 1 (“Rule 1923 Stmt.”)
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phone’s tracking ability since he only owned [the] phone 

for one day. Complainant was then shown D-2, the notes 

of testimony from the Preliminary Hearing where he said 

he had the phone for 1 month.

Philadelphia Police Officer Justin Rios of the 22nd precinct 

was then called to the stand to testify as a Commonwealth 

witness. Officer Rios testified that he remembered the 

date of March 12, 2014, and that he was driving in the 

area on the way to work. He observed the complainant 

with another male on the corner of Cecil B. Moore Avenue 

and Marshall Street. He observed [White] standing in front 

of the complainant and yelling at the complainant. He 

then observed [White] run toward the complainant with 

closed fist and strike him in the face.

Officer Rios pulled over and broke up the altercation. He 

observed the complainant with a bloody and crooked nose. 

The complainant walked in Officer Rios’ direction and 

[White] and his co-defendant followed. Officer Rios 

testified that he asked the complainant what had 

happened and the complainant responded that [White] hit 

him. Officer Rios then detained [White] by grabbing him 

by the pants.

Another police officer, who also happened to be on his way 

to work, stopped to lend assistance. After [White] was 

placed in handcuffs, the complainant went home to get his 

father. Some friends of [White] also came to the scene. 

Officer Rios told the complainant to go with the medics. 

Seven to ten people were at the scene at the time of the 

incident. On cross-examination, Officer Rios testified that 

his badge was not visible at the time. At the time of this 

arrest, he had been an officer for 7 years.

Philadelphia Police Officer Brooke Seiberlich was the last 

witness to testify. He testified that he was on his way to 

work when he observed Officer Rios with [White]. He 

exited his vehicle and was informed that [White] assaulted 

the complainant. Officer Seiberlich then frisked [White] 

and placed him under arrest. This officer then took 

[White] away from the scene. [White] moved D-1 and D-2 

into evidence without objection.

Rule 1923 Stmt. at 1-3.
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Following a bench trial, the court convicted White of robbery, REAP, 

simple assault, conspiracy, theft by unlawful taking, and receiving stolen 

property. On November 20, 2014, the trial court sentenced White to 

concurrent sentences of 2 to 4 years’ incarceration followed by 2 years’ 

probation for the robbery and conspiracy convictions. The trial court 

imposed no further penalty for the remaining convictions. On November 30, 

2014, White filed a post-sentence motion alleging the verdict was against 

the weight of the evidence. On March 31, 2015, the motion was denied by 

operation of law. 

On April 10, 2015, White filed a notice of appeal. On April 14, 2015, 

the trial court issued an order requiring White to file a statement of matters 

complained of on appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b) within 21 days of receiving the transcripts from the 

November 20, 2014 hearing. On August 24, 2015, White filed a statement 

in absence of transcript pursuant to Pennsylvania Rule of Appellate 

Procedure 1923. White explained that the reporter was preparing the 

transcript of the sentencing hearing, but that the digital transcript manager 

informed counsel there was a problem with the audio recording of the bench 

trial, which prevented her from producing the trial transcripts. White, 

therefore, submitted a statement of the record derived from the case docket 

and counsel’s recollection of the trial. 

On September 15, 2015, the trial court ordered White to file a Rule 

1925(b) statement within 21 days. On October 5, 2015, White filed a Rule 
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1925(b) statement, alleging that there was insufficient evidence to sustain 

the robbery conviction and that the guilty verdict for the robbery conviction 

was against the weight of the evidence. White also sought an extension of 

time to file a supplemental Rule 1925(b) statement upon receipt of all notes 

of testimony. On October 3, 2015, the trial court issued its Rule 1923 

statement, which included the following introductory paragraph:

[P]ursuant to Pa.R.Crim.P. 1923, based upon a review of 

[White’s] proposed Rule 1923 Statement, and no 

response, objection or amendment from the 

Commonwealth, this Court hereby adopts, in part, 

[White’s] Statement and has amended the same with this 

Court’s trial notes and recollection. This Statement shall 

be made a part of the record on appeal.

Rule 1923 Stmt. at 1.3 Also on October 30, 2015, the trial court ordered 

that White file a revised Rule 1925(b) statement within 21 days. On 

November 9, 2015, White filed a supplemental Rule 1925(b) statement, 

alleging that: (1) the evidence was insufficient to sustain the robbery 

conviction because the Commonwealth failed to establish a theft occurred; 

(2) the evidence was insufficient to establish the conspiracy conviction; and 

(3) the verdict for the robbery conviction was against the weight of the 

evidence. On January 29, 2016, the trial court issued its Rule 1925(a) 

opinion.

____________________________________________

3 The Commonwealth did not respond or object to the statement in 

absence of the transcript filed by White or the statement filed by the trial 

court. 
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White raises the following issues on appeal:

1. Was not the verdict as to robbery so contrary to the 

weight of the evidence as to render it unjust, where the 

testimony of the complainant regarding the theft of his 

phone was unreasonably tenuous and belied by the lack of 

physical evidence?

2. Was not the evidence insufficient to sustain a conviction 

for robbery, theft, and receiving stolen property, where the 

evidence was insufficient to prove that a theft or an 

attempted theft had occurred?

3. Was not the evidence insufficient to sustain a conviction 

for conspiracy, where the evidence was insufficient to 

prove the existence of any conspiratorial agreement with 

another?

White’s Br. at 3.

Before we address the merits of White’s claims, we must first 

determine the materials in the record that this Court may consider in 

reaching our determination. The Commonwealth contends that we may 

consider not only the trial court’s Rule 1923 Statement, but also White’s 

Rule 1923 Statement, and the notes of testimony from the preliminary 

hearing, which, it argues, were admitted into evidence at trial. 

Commonwealth’s Br. at 2 n.1.

Rule 1923 provides:

If no report of the evidence or proceedings at a hearing or 

trial was made, or if a transcript is unavailable, the 

appellant may prepare a statement of the evidence or 

proceedings from the best available means, including his 

recollection. The statement shall be served on the 

appellee, who may serve objections or propose 

amendments thereto within ten days after service. 

Thereupon the statement and any objections or proposed 

amendments shall be submitted to the lower court for 
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settlement and approval and as settled and approved shall 

be included by the clerk of the lower court in the record on 

appeal.

Pa.R.A.P. 1923.4

The only statement this Court may consider is the statement that the 

trial court “settled and approved” and ordered that the clerk include in the 

record.5 See Pa.R.A.P. 1923. Therefore, we may not consider White’s Rule 

1923 Statement. Further, this Court may not consider the preliminary 

hearing transcript. Although the trial court’s Rule 1923 Statement states 

____________________________________________

4 This Court has stated the following regarding when a new trial is 

appropriate due to the lack of transcripts:

Where meaningful review is impossible and appellant is 

free from fault, a new trial may be granted. Meaningful 

review does not require, per se, a complete trial transcript. 

Rather, the court may provide either a complete trial 

transcript or an equivalent thereof. Rule 1923 does not 

contemplate that appellate counsel must single-handedly 

reconstruct the record. The theory that underlies Rule 

1923 is that a verbatim transcript of proceedings is not 

necessarily a condition precedent to meaningful appellate

review, so long as the appellate court has an “equivalent 

picture” of what happened at trial. Further, no relief is due 

because counsel on appeal was not counsel at trial. 

Rather, appellate counsel is required to prepare a 

statement of the missing evidence from the best available 

means. 

Commonwealth v. Harvey, 32 A.3d 717, 721-22 (Pa.Super. 2011) 

(citations and internal quotation marks omitted).

5

In its Rule 1925(a) opinion, the trial court stated that it 

supplemented White’s Rule 1923 statement with its own notes because 

White’s “suggested statement lacked significant facts and testimony elicited 

at trial.” 1925(a) Op. at 2.
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that White moved for the admission of the preliminary hearing transcript 

without objection, the Rule 1923 statement refers only to the part of the 

transcript used to establish that the victim gave prior inconsistent 

testimony.6 The Commonwealth suggests that we may consider all 

statements made at the preliminary hearing, regardless whether the 

statements are consistent with trial testimony or whether the information 

was admitted at trial. We disagree. The Commonwealth has not established 

that the preliminary hearing testimony was admitted as substantive 

evidence at trial pursuant to any exception to the rule excluding hearsay. 

See Pa.R.E. 803, 804. Accordingly, we will not consider the preliminary 

hearing testimony on appeal.

We will first address White’s claims that the Commonwealth failed to 

present sufficient evidence to support his convictions. We apply the 

following standard when reviewing a sufficiency of the evidence claim: 

“[W]hether 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.” 

Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa.Super. 2003), aff’d, 

____________________________________________

6 The trial court noted that the victim testified at trial that he had 

owned the phone for only one day at the time of the robbery, and White’s 

counsel showed the victim his testimony from the preliminary hearing, in 

which he stated that he had had the phone for one month. Rule 1923 Stmt. 

at 2.
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870 A.2d 818 (Pa. 2005) (quoting Commonwealth v. DiStefano, 782 A.2d 

574 (Pa.Super. 2001)). In applying this standard, “we may not weigh the 

evidence and substitute our judgment for the fact-finder.” Id.

Further, “the facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence.” Lehman, 

820 A.2d at 772 (quoting DiStefano, 782 A.2d at 574). Moreover, “[a]ny 

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.” Id. 

“The Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence.” Id.

In applying the above test, we must evaluate the entire record. 

DiStefano, 782 A.2d at 582. Further, “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.” Id.

White claims that the evidence was insufficient to sustain the 

convictions for robbery, theft, and receiving stolen property because the 

Commonwealth failed to establish that he took, attempted to take, or 

otherwise exercised control over the victim’s cell phone. White’s Br. at 15. 

To establish White was guilty of robbery, the Commonwealth was 

required to establish that: “in the course of committing a theft, he . . . 

inflict[ed] bodily injury upon another or threaten[ed] another with or 
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intentionally put[] him in fear of immediate bodily injury.” 18 Pa.C.S. § 

3701(a)(iv). “An act shall be deemed ‘in the course of committing a theft’ if 

it occurs in an attempt to commit theft or in flight after the attempt or 

commission.” 18 Pa.C.S. § 3701(a)(2). A person commits the crime of 

“theft by unlawful taking” if he “unlawfully takes, or exercises unlawful 

control over, movable property of another with intent to deprive him 

thereof.” 18 Pa.C.S. § 3921(a). To establish a person received stolen 

property, the Commonwealth must establish that the person “intentionally 

receives, retains, or disposes of movable property of another knowing that it 

has been stolen, or believing that it has probably been stolen, unless the 

property is received, retained, or disposed with intent to restore it to the 

owner.” 18 Pa.C.S. § 3925(a). “Receiving” is defined as “acquiring 

possession, control or title, or lending on the security of the property.” 18 

Pa.C.S. § 3925(b).

White argues that the Commonwealth failed to establish that he took 

the victim’s phone. He notes that the police arrested him at the crime 

scene, and the phone was never recovered. He also claims the victim’s 

testimony was unreliable because it was contradicted by the physical facts. 

White’s Br. at 15. 

Viewing the record in the light most favorable to the Commonwealth 

as the verdict winner, we conclude the Commonwealth presented sufficient 

evidence to establish, beyond a reasonable doubt, that White took the 

victim’s phone. The victim testified that he was listening to music on his cell 
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phone when White approached him from behind, asked “what kind of phone 

you got?,” and then struck him. Rule 1923 Stmt. at 1-2. The victim 

testified that he then placed his phone in his pocket, and that White then 

reached into the pocket and removed the phone. Id. at 2. Although the cell 

phone was not recovered, the victim’s testimony provided sufficient evidence 

from which a fact-finder could conclude, beyond a reasonable doubt, that 

White took the victim’s cell phone.

White next argues that the Commonwealth failed to provide sufficient 

evidence to support the conspiracy conviction. Although White raised this 

claim in his supplemental Rule 1925(b) statement, the trial court’s Rule 

1925(a) opinion does not address it.7 Based on the evidence in the trial 

court’s Rule 1923 statement, we agree with White.

Criminal conspiracy is defined as follows:

A person is guilty of conspiracy with another person or 

persons to commit a crime if with the intent of promoting 

or facilitating its commission he: 

(1) agrees with such other person or persons that they or 

one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to 

commit such crime; or 

____________________________________________

7 Although the trial court permitted White to file a supplemental Rule 

1925(b) statement following the court’s filing if its Rule 1923 Statement, the 

court’s Rule 1925(a) opinion addressed only the issues raised in White’s 

original Rule 1925(b) statement. The trial court, therefore, did not address 

White’s allegation that the evidence was insufficient to support his 

conspiracy conviction, which White raised for the first time in his 

supplemental Rule 1925(b) statement. 
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(2) agrees to aid such other person or persons in the 

planning or commission of such crime or of an attempt or 

solicitation to commit such crime.

18 Pa.C.S. § 903. This Court has stated that: 

[c]ircumstantial evidence may provide proof of the 

conspiracy. The conduct of the parties and the 

circumstances surrounding such conduct may create a 

“web of evidence” linking the accused to the alleged 

conspiracy beyond a reasonable doubt. 

Commonwealth v. Irvin, 134 A.3d 67, 75 (Pa.Super. 2016) (quoting 

Commonwealth v. Perez, 931 A.2d 703, 708 (Pa.Super. 2007)). Further,

[a]n agreement can be inferred from a variety of 

circumstances including, but not limited to, the relation 

between the parties, knowledge of and participation in the 

crime, and the circumstances and conduct of the parties 

surrounding the criminal episode. These factors may 

coalesce to establish a conspiratorial agreement beyond a 

reasonable doubt where one factor alone might fail.

Id. (quoting Perez, 931 A.2d at 708).

In the trial court’s Rule 1923 Statement, the only references to 

possible co-conspirators are that, after the theft, “the defendant and his codefendant” followed the victim when he walked over to speak with the officer 

who had arrived on the scene, and that “[s]ome friends of the defendant 

also came to the scene.” Rule 1923 Stmt. at 2-3. This is insufficient to 

establish, beyond a reasonable doubt, that any agreement existed between 

White and another person.8 We therefore vacate the conspiracy conviction.

____________________________________________

8 White’s Rule 1923 Statement included additional information 

regarding a potential conspiracy, including that: (1) the victim testified that 

(Footnote Continued Next Page)
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White also claims that the verdict of guilty for the robbery conviction 

was against the weight of the evidence.

This court reviews a weight of the evidence claim for an abuse of 

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “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.” Id. (quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa. 

2000)). “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.” Id.

A trial court should not grant a motion for a new trial “because of a 

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

have arrived at a different conclusion.” Clay, 64 A.3d at 1055. “Rather, 

(Footnote Continued) _______________________

White and another male approached him; and (2) Officer Rios testified he 

saw the victim, White, and White’s co-defendant on the corner, saw White 

and his-co-defendant yell at the victim, and observed White lunge at the 

victim. In partially adopting White’s Rule 1923 statement, the trial court 

only included that Officer Rios testified that when the victim walked toward 

him, White and his co-defendant followed. The trial court, however, did not 

include the other references to the co-defendant. As a result, and because 

the trial court did not address this sufficiency claim in its Rule 1925(a) 

opinion, this Court cannot safely conclude that the trial court viewed these 

facts as established at trial.
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‘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. (quoting 

Widmer, 744 A.2d at 752). Courts have 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.” Id. (quoting 

Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).

White claims the verdict was against the weight of the evidence 

because the victim’s testimony that White stole his phone was not credible, 

noting the officers did not see White take the phone, White did not leave the 

scene prior to his arrest, and the phone was not recovered. White’s Br. at 

10-13. However, the trial court as finder of fact was free to credit the 

victim’s testimony. See Commonwealth v. Page, 59 A.3d 1118, 1130 

(Pa.Super. 2013) (credibility determination “lies solely within the province of 

the factfinder”); Commonwealth v. DeJesus, 860 A.2d 102, 107 

(Pa.Super. 2004) (“The weight of the evidence is exclusively for the finder of 

fact, which is free to believe all, part, or none of the evidence, and to assess 

the credibility of the witnesses.”). The trial court did not abuse its discretion 

when it found the verdict was not against the weight of the evidence. 

Accordingly, we conclude that the Commonwealth presented sufficient 

evidence to convict White of robbery, theft, and receiving stolen property 

and that the trial court did not abuse its discretion when it found the verdict 
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for robbery was not against the weight of the evidence. However, we 

conclude that the record as established by the trial court does not reflect 

that the Commonwealth presented sufficient evidence to support the 

conspiracy conviction. Because the trial court imposed concurrent sentences 

for robbery and conspiracy, vacating the judgment of sentence for 

conspiracy does not affect the overall sentencing scheme, and remand is not 

necessary. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69 

(Pa.Super. 2010) (finding remand not required when vacating judgment of 

sentence would not disturb the overall sentencing scheme).

Judgment of sentence for conspiracy vacated. Judgment of sentence 

affirmed as to the convictions for robbery, REAP, simple assault, theft by 

unlawful taking, and receiving stolen property.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016