J-S82011-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP L. BURNEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2254 EDA 2017

Appeal from the Judgment of Sentence June 12, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009549-2016

BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 15, 2019

Phillip Burney appeals from his judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, following his conviction on two 

counts each of criminal conspiracy1 (robbery), theft by unlawful taking,2 and 

theft by receiving stolen property.3 Upon careful review, we affirm.

The trial court set forth the facts of this case as follows:

[Claire] Gothreau testified that on August 14, 2016 at 

approximately 1:00 a.m., she and her friend, Lauren Rowlands, 

were walking on 18th Street south of Fairmount Avenue in 

Philadelphia, when a male grabbed her shoulder from behind and 

spun her around. The male was pointing a long, silver handgun 

at her chest and told her to give him her purse; she complied. 

The male then turned the gun on her friend, and demanded her 

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1 18 Pa.C.S. § 903.

2 18 Pa.C.S. § 3921.

3 18 Pa.C.S. § 3925.
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purse; she complied as well. The male turned the gun back on 

Ms. Gothreau, and asked for her phone. She told him that it was 

in her purse. The male then turned, ran to a large white SUV and 

drove away. She described her attacker as an African-American 

male, five-foot eleven-inches tall, 170 pounds, wearing a white 

tank top and shorts. In total, the male took her iPhone and purse, 

which contained her wallet, two credit cards, makeup and keys.

Immediately after the robbery, a “good Samaritan” approached 

them and asked if they needed help; they said yes. He called the 

police on his phone and handed it to Ms. Gothreau, who explained 

what just happened and provided descriptive information. Within 

two minutes, a police car came down 18th Street, picked them up, 

and transported them to a CVS parking lot approximately five 

blocks away on Fairmount Avenue. There, she observed two 

males, one of whom she positively identified as the male who had 

just robbed her. She then saw police retrieve her and her friend’s 

belongings from the back of the SUV; they positively identified 

their belongings, which were inventoried at the police station 

before being returned to them. Ms. Gothreau testified that the 

entire episode, from the holdup to her positive identifications, 

occurred within a very short time span -- no more than five to ten 

minutes.

The Commonwealth next called complainant Lauren Rowlands to 

the stand. Ms. Rowlands testified that, on August 14, 2016 at 

approximately 12:45 a.m., she and Clair Gothreau were walking 

home on 18th Street south of Fairmount Avenue when a man 

approached Ms. Gothreau from behind and stood in between the 

two women. She saw Ms. Gothreau hand over her yellow purse, 

and at that point she realized that they were being robbed. Ms. 

Rowlands reached for her phone, but the male pointed the gun at 

her abdomen and demanded her phone and purse; she promptly 

complied. Her purse contained $85 in cash, a debit card, 

American Express card, an ID, makeup, ear buds and house keys. 

The male turned back to Ms. Gothreau to make sure he had her 

phone as well. He then ran away, at which point she saw a 

gentleman approaching them to render assistance. They used his 

phone to call police, and described what happened “in very vivid 

detail”. Within minutes, a police SUV came barreling down the 

street and the officer asked them to get in the back. He drove 

them to a CVS a few blocks away on Fairmount Avenue, where 

she identified the gunman “easily and quickly.” Her belongings 
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were present at that location and “everything but [her] lip gloss” 

was returned to her.

The Commonwealth next presented the testimony of Philadelphia 

Police Officer Rasheen Dickerson. Officer Dickerson testified that, 

on August 14, 2016, he and his partner, Officer Holden, were 

working in plain clothes in an unmarked vehicle in the Fairmount 

section of Philadelphia. At approximately 12:45 a.m., they were 

traveling eastbound on Fairmount Avenue, stopped at a traffic 

light at the 24th Street intersection when they observed a black 

male, later identified as Jeremiah Byrd, running westbound toward 

them on Fairmount. When he got to the corner, the male placed

something in the bushes and then immediately ran back 

eastbound on Fairmount Avenue. The officers pursued him slowly 

in their unmarked vehicle until he reached a CVS parking lot in the 

middle of the block. There, Officer Dickerson saw the male enter 

the driver’s seat of an SUV and observed a second male, Appellant

[Burney], sitting in the passenger seat.

Officer Dickerson instructed his partner to quickly drive back to 

the corner so that he could see what was in the bushes. He 

observed two cell phones with “feminine” cases -- one was pink 

and the other had red hearts. At that point he told his partner, 

“[L]et’s go have a conversation with those two guys.” As they 

were returning to the CVS lot, police radio broadcast a call of 

gunpoint robbery in progress on the 1700 block of North Street. 

Officer Dickerson observed that the first male -- later identified as 

Jeremiah Byrd -- matched the flash description from the robbery 

call. Officer Dickerson exited the vehicle and approached the 

passenger side of the SUV, while his partner drove to the other 

side to “block it in.” Officer Dickerson instructed the males not to 

move. Mr. Byrd nonetheless exited the driver’s seat and came 

running around to the passenger side of the vehicle, at which time 

[Burney] climbed over to the driver’s seat and fled the vehicle. 

Mr. Byrd was detained by Officer Holden and [Burney] was 

[apprehended] by Officer Dickerson.

Officer Dickerson testified that he peered in the SUV and saw, in 

plain view, a silver handgun on the passenger side floor where 

[Burney] was sitting. He also saw, in plain view, a pocketbook 

and a purse/clutch on the back seat. The items were recovered 

under property receipt. Two females then arrived at the scene 

and they each identified Mr. Byrd as the man who robbed them 

with a gun. They also identified the two phones, the pocketbook 
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and the clutch as theirs. At that point, the officers arrested Mr. 

Byrd. Because [Burney] was about to be transported to the 

station for investigation, Officer Dickerson performed a search 

incident to transport. [Burney’s] right front pocket contained 

$118 in cash, and both a debit card and a credit card “with 

complainant’s name on it.

Trial Court Opinion, 1/19/18, at 2-5 (citations and footnotes omitted).

Following a bench trial, the court convicted Burney of conspiracy 

(robbery), theft by unlawful taking and theft by receiving stolen property. On 

June 12, 2017, Burney was sentenced to an aggregate term of 11⁄2-3 years’

incarceration, followed by a five-year probationary period. Burney filed postsentence motions, which were denied. Burney filed a timely notice of appeal 

and a court-ordered statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b).

Burney raises the following issues for our review:4

1) Whether the trial court [erred] in entering verdicts of guilty 

against [Burney] because the evidence at trial was insufficient to 

support a conviction.

2) Whether the verdict of guilty was against the weight of the 

evidence at trial.

Brief of Appellant, at 4.

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4 Even though Burney’s brief does not attempt to apply law to the facts, 

making it difficult to conduct appellate review, we decline to dismiss because 

of the comprehensive Rule 1925(a) Opinion authored by the Honorable Susan 

I. Schulman.
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Burney first claims the evidence was insufficient to convict him of 

conspiracy to commit robbery. He argues the evidence only shows possession 

of stolen property, but does not show the existence of an agreement. He is 

entitled to no relief.

“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. Cox, 72 A.3d 719, 721 (Pa. Super. 2013).

To convict a defendant of conspiracy, the trier of fact must find the 

following:

(1) the defendant intended to commit or aid in the commission of 

the criminal act; (2) the defendant entered into an agreement with 

another (a “co-conspirator”) to engage in the crime; and (3) the 

defendant[,] or one or more of the other co-conspirators 

committed an overt act in furtherance of the agreed upon crime.

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

An explicit or formal agreement to commit a crime can rarely be proved. 

However, direct evidence is unnecessary because “proof of criminal 

partnership is almost invariably extracted from the circumstances that attend 

its activities.” Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 

2012).

As the trial court noted, there is no direct evidence that Burney 

committed the robbery. However, there was sufficient circumstantial evidence 

to establish a common understanding to commit the robbery. During the 
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robbery, officers observed Byrd stash the phones and return to the vehicle

where Burney was sitting in the passenger seat with a silver gun at his feet. 

When Burney was apprehended trying to flee the officers, he was caught “redhanded in possession of the fruits of the robbery, namely, cash and 

credit/debit cards taken from the victims.” Trial Court Opinion 1/19/18, at 9. 

All this occurred within minutes of the robbery and in the same location as the 

robbery. Burney was in the getaway vehicle, in possession of the 

complainant’s stolen property, with the gun used in the robbery at his feet, 

and with the man identified as the robber. When officers approached, he fled.

Viewed in the light most favorable to the Commonwealth, there is ample 

evidence to establish that there was an agreement to enter into a robbery. 

Contrary to Burney’s statement that there is “no evidence [Burney] agreed to 

rob someone,” there is sufficient circumstantial evidence for the fact finder to 

find a conspiracy.

Burney also claims that the verdict was against the weight of the 

evidence.

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 
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exercised and relief will only be granted where the facts and 

inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations 

and internal quotation marks omitted).

Here, the trial court found the Commonwealth’s witnesses credible. The 

only issue was whether Burney actually possessed stolen property. Judge 

Schulman, acting as the finder of fact, reasonably found Burney was in 

possession of the stolen property. Judge Schulman found Burney failed to 

show how the result “shocks one’s sense of justice.” Trial Court Opinion, 

1/19/18, at 12. Based on our review of the record, we can discern no abuse 

of discretion in the court’s conclusion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/15/19