J-S23003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

LAMAR PERSON, :

:

Appellant : No. 2059 EDA 2013

Appeal from the Judgment of Sentence April 5, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0004862-2012

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MAY 14, 2015

Lamar Person (“Person”) appeals from the judgment of sentence 

entered on April 5, 2013 by the Court of Common Pleas of Philadelphia 

County, Criminal Division, following his convictions of robbery, conspiracy, 

and recklessly endangering another person (“REAP”).1 We affirm.

The trial court summarized the relevant facts of this case as follows:

The incident giving rise to the charges in this case 

occurred on February 12, 2012, at a delicatessen 

located at 816 North 12th Street in the City of 

Philadelphia (12th Street Deli) involving the victim, 

Michael White (White). On that day at or around 

8:45 p.m., White was walking down 12th Street 

when he noticed a gold Nissan Maxima slowing down 

with four men in it. White became suspicious that 

something was wrong because the car was slowing 

down and the men were staring at him. Upon which, 

White went into the 12th Street Deli, thinking that he 

would be safe therein. However, two men from the 

 

1

 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 2705. 
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Nissan followed him into the 12th Street Deli, 

[Person] and his co-conspirator, Ronald Flamer 

(Flamer). Flamer walked in first and asked White 

what time it was. White turned his head and saw 

[Person] enter the Deli. Whereupon, Flamer told 

White to empty his pockets. Flamer proceeded to go 

through White’s pockets and found a five dollar bill; 

a pack of Newport cigarettes; and a cell phone. 

Flamer took these items from White. However, the 

co-conspirators wanted more valuables to take. 

Thereupon, Flamer told [Person] to pull out his 

ratchet, meaning a “gun.” White believed that he 

saw [Person] pull out a gun from his pocket. But 

that was all that White had so the co-conspirators 

left the 12th Street Deli and got back into the Nissan 

and drove away. White went immediately home. 

When he got home, White’s mother called the police.

When the police arrived, White told Philadelphia 

Police Officer Joseph Gillespie (Officer Gillespie) what

had happened. Officer Gillespie put out a police flash 

with descriptions looking for the suspects. At about 

that time[,] the co-conspirators were stopped for a 

traffic violation by Philadelphia Police Officer Robert 

Wuuller (Officer Wuuller) at Broad and Dauphin 

Streets because of no passenger side mirror. Officer 

Wuuller then got the police flash from headquarters 

about the gold Nissan Maxima[,] which matched the 

description of [Person] and Flamer. Officer Gillespie 

brought White to the car stop of [Person] and Flamer 

at Broad and Dauphin Streets. At the scene, White 

identified [Person] and Flamer as the perpetrators of 

the Robbery.

Trial Court Opinion, 11/25/13, at 2-3.

On January 18, 2013, a jury found Person guilty of robbery (F1), 

conspiracy (F1), and REAP. On April 5, 2013, this trial court sentenced 

Person to consecutive sentences of five to ten years of incarceration on the 

robbery charge; five to ten years of incarceration on the conspiracy charge; 
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and no further penalty on the REAP charge, for an aggregate sentence of ten 

to twenty years of incarceration. 

On April 11, 2013, Person filed a post-sentence motion alleging 

prosecutorial misconduct and that the verdict was against the weight of the 

evidence, which the trial court denied on July 18, 2013. On July 22, 2013, 

Person filed a timely notice of appeal.

On appeal, Person raises the following issues for our review and 

determination:

1. During the Commonwealth’s closing argument, 

the prosecutor explicitly asked the jurors to put 

themselves in the shoes of the victim and principal 

witness Michael White.

2. The trial court erred when it failed or refused to 

charge the jury on the lesser included offenses or 

concluded that it did not have the authority to or 

refused to find [Person] guilty of any lesser included 

offense.

3. Whether the verdict was based on insufficient 

evidence?

4. The verdict regarding F-1 robbery was against the 

weight of the evidence.

Person’s Brief at 11.2

For his first issue on appeal, Person argues that the trial court erred in 

not granting him a new trial due to prosecutorial misconduct that allegedly 

took place during closing arguments. Person’s Brief 15-24. Specifically, 

 

2

 We reordered the issues Person raises on appeal for ease of review.
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Person takes issue with the following portion of the prosecution’s closing 

argument: 

You can give [White] justice with one word. Guilty. 

I’m asking you to go to this room and I’m asking you 

to imagine how this kid felt inside that deli with 

nobody but the clerk behind that window who was of 

no help and two guys covering him and one guy 

holding a gun while the other one was doing this to 

him. I want you to think about this when you go to 

this room to deliberate. And when you come back it 

will be your turn to speak the truth and I’ll ask you 

to find both of these defendant[s] guilty of gunpoint 

robbery of this kid [White]. Thank you.

N.T., 1/17/13, at 161. Person contends that by asking the jury to place 

themselves into the shoes of the victim, the prosecution wrongly attempted 

to influence the jury by arousing their prejudices. Person’s Brief at 15.

We conclude that Person has waived this claim for failing to make a 

timely objection to the prosecutor’s remarks. 

This Court has held that the lack of a 

contemporaneous objection constitutes a waiver of 

any challenge to the prosecutor’s closing remarks. 

Commonwealth v. Powell, [] 956 A.2d 406, 423 

([Pa.] 2008) (providing that the “absence of a 

contemporaneous objection below constitutes a 

waiver of appellant’s current claim respecting the 

prosecutor’s closing argument”); Commonwealth v. 

Butts, [] 434 A.2d 1216, 1219 ([Pa.] 1981) 

(providing that the failure to object during or after 

summation constitutes a waiver of prosecutorial 

misconduct claim).

Commonwealth v. Rivera, [] 983 A.2d 1211, 1229 ([Pa.] 2009) (citation 

omitted). Here, Person did not object to the above-referenced remarks at 
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trial and did not raise the issue until his post-sentence motion. See N.T., 

1/17/13, at 161; Post-Sentence Motion, 4/11/13, at 4-7. Accordingly, 

Person has waived this issue.

For his second issue on appeal, Person argues that the trial court erred 

in denying his request to charge the jury on robbery graded as a secondand third-degree felony. Person’s Brief at 25-30. The record reveals that 

Person did not object to the trial court’s failure to include this point at the 

time it charged the jury. N.T., 1/17/13, at 112-13, 183-84. Accordingly, 

Person has waived the issue. See Commonwealth v. Sanchez, 82 A.3d 

943, 978 (Pa. 2013) (holding that even where trial court denies request for 

specific charge at charging conference, party must make a specific objection 

to its omission when charge is given to preserve the issue for appeal). 

Even if Person had not waived this issue, it would not prevail.3 Person 

argues that he was entitled to a charge on robbery as a second- and thirddegree felony because they are lesser-included offenses of first-degree 

felony robbery for which the record contained evidentiary support. Person’s 

Brief at 25-28.4 This argument is premised on Person’s assertion that 

 

3

“In deciding whether a trial court erred in refusing to give a jury 

instruction, we must determine whether the court abused its discretion or 

committed an error of law.” Commonwealth v. Clouser, 998 A.2d 656, 

658 (Pa. Super. 2010).

4 We note that the relevant distinction here is that first-degree felony 

robbery requires a finding that the actor threaten or instill the fear of serious 

bodily injury, second-degree felony robbery requires only the intent to cause 

or instill fear of bodily injury, and third-degree felony robbery occurs where 
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because White did not positively identify the object in Person’s hand as a 

gun, the jury could reasonably conclude that they did not possess a gun and 

therefore did not threaten or intend to put White in fear of serious bodily 

harm, as is required for a conviction of robbery as a first-degree felony. See 

id. We rejected precisely the same argument in Commonwealth v. 

Thomas, 546 A.2d 116 (Pa. Super. 1988). In that case, the defendant 

robbed a fast food restaurant. In the course of doing so, he held a pointed 

object under his shirt. As the defendant was collecting money from the 

registers, it was revealed that the object under his shirt was a door lock. He 

was convicted of robbery graded as a first-degree felony. In a PCRA 

petition, the defendant argued that his trial counsel was ineffective for failing 

to request a charge to the jury on robbery as a second-degree felony 

because it is a lesser-included offense. After considering the definitions of 

these crimes, we agreed with the defendant that second-degree robbery is a 

lesser-included offense of first-degree robbery, but we rejected his claim 

that this alone entitled him to a charge on the offense: 

However, [the defendant] is not automatically 

entitled to have the jury instructed on second[-] 

degree robbery simply because that charge 

constitutes a lesser included offense of the first 

degree robbery charge. A defendant is entitled to 

such an instruction only where the evidence in the 

record would permit the jury to find, rationally, the 

 

the defendant “physically takes or removes property from the person of 

another by force however slight.” See 18 Pa.C.S.A. § 3701(a)(1)(ii), (iv), 

(v). 
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defendant guilty of the lesser included offense but 

not the greater offense. Commonwealth v. Wood, 

475 A.2d 834 ([Pa. Super.] 1984); Commonwealth 

v. Sirianni, 428 A.2d [629,] 633 [(Pa. Super. 

1981)].

[The defendant] asserts that he was entitled to such 

an instruction because the evidence supported a 

finding that appellant threatened the McDonald’s 

employees with “immediate bodily injury” but not 

with “immediate serious bodily injury.” According to 

[the defendant], since [he] carried only a lock, which 

cannot cause serious bodily injury, the victims were 

never placed in fear of serious bodily injury. ... . 

[The defendant’s] focus on the true nature of the 

hidden object and on the state of mind of the victims 

is misplaced. Rather, the proper focus under the 

statute in determining the type of bodily harm 

threatened is on the defendant’s intent and actions. 

Commonwealth v. Morton, 512 A.2d 1273 ([Pa. 

Super.] 1986); Commonwealth v. Mays, 375 A.2d 

116 ([Pa. Super.] 1977). In simulating the 

possession of a gun, [the defendant] was clearly 

aiming to instill in his victims the highest degree of 

fear. Faced with a deadly weapon, a victim fears, 

not just that he or she may be injured during the 

robbery, but that his or her very life is in danger. 

[The defendant] did not simply intend that the 

victims’ fear of some bodily injury would prevent 

resistance; rather, he relied on the threat of a deadly 

weapon to insure compliance.

[The defendant’s] crime is not made less serious by 

the fact that he did not possess a gun, but was only 

simulating one. Commonwealth v. Hurd, [] 407 

A.2d 418, 420 ([Pa. Super.] 1979) (defendant 

placing hand in pocket and pointing at victim shows 

that defendant intended to put victim in fear of 

serious bodily harm). Neither is the harm intended 

reduced to mere bodily harm simply because the 

victims realized before [the defendant] escaped (but 

after [he] began taking the money), that [he] did 
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not possess a gun. The proper question is whether 

the threat intended or posed by [the defendant] was 

calculated to inflict fear of serious bodily injury. 

Commonwealth v. Mays, [] 375 A.2d at 118. The 

threat posed by the appearance of a gun is 

calculated to inflict fear of deadly, not just mere 

bodily, injury. This threat enabled [the defendant] 

to proceed with the theft. ... Moreover, the statute 

instructs that in determining the grade of the felony 

we focus on the intent or act of the defendant and 

not the subjective state of mind of the victim. [The 

defendant] would not have been exonerated of the 

first[-]degree felony even if his victims refused to 

take his threat seriously. Hurd, 407 A.2d at 420; 

Mays, 375 A.2d at 118.

The statute itself, by dividing the degrees of robbery 

into gradations of possible violence, demands that 

the jury make a decision as to the degree of violence 

that the defendant intended or used in the 

commission of the crime. In distinguishing between 

bodily injury and serious bodily injury, the legislature 

recognized that the amount of force used or 

threatened on a person during a robbery deserved 

separate treatment and penalty, with the 

punishment proportionate to the amount of violence 

threatened or used. Commonwealth v. Brown, [] 

484 A.2d 738, 741 ([Pa.] 1984). It would be both 

irrational and contrary to the aims of the statute for 

the jury to be permitted to find [the defendant], who 

calculated that his victims would be in mortal fear of 

a deadly weapon, guilty only of the lesser offense of 

threatening mere bodily injury, but not guilty of 

threatening serious bodily injury. [The defendant] 

was therefore not entitled to have the jury instructed 

on the charge of second[-]degree robbery. See [] 

Sirianni, [] 428 A.2d at 633 (where firearm 

involved, it would not have been reasonable for the 

jury to infer the intent to cause mere bodily injury 

from the fact that no serious bodily injury was 

caused; defendant not entitled to jury instruction on 

lesser included offense of simple assault). 
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Instructions should invite the jury to arrive at a 

rational, not an irrational, conclusion.

Thomas, 546 A.2d at 118-19. 

Similar to the situation in Thomas, Person’s argument for the secondand third-degree robbery instruction was premised on his assertion that the 

evidence would allow a finding that he did not actually possess a gun. 

However, as recounted above, whether he actually possessed a gun is not 

the salient inquiry; we focus, instead, on whether the actor intended to instill 

fear of serious bodily injury. Even if Person and Flamer did not possess a 

gun, it is undisputed that they simulated possession of a gun. Thus, as in 

Thomas, we conclude that the “threat intended or posed by [Person] was 

calculated to inflict fear of serious bodily injury,” and the jury could not have 

rationally concluded otherwise. Accordingly, we find no error in the trial 

court’s refusal to give the requested charge. 

For his third issue on appeal, Person challenges the sufficiency of the 

evidence for his robbery as a first-degree felony conviction.5 Person’s Brief 

at 33-35. When reviewing sufficiency of the evidence claims, “we must 

 

5

 We note that although the statement of the questions involved section of 

Person’s appellate brief and the heading to this issue in the argument 

section of his brief claim that his entire verdict was based on insufficient 

evidence, Person presents argument only as to his robbery conviction. See

Person’s Brief at 11, 33-35. Therefore, Person has waived any challenge to 

his other convictions with respect to the sufficiency of the evidence. See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful 

fashion capable of review, that claim is waived.”).
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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) (quoting 

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

performing this review, “we may not reweigh the evidence or substitute our 

own judgment for that of the fact finder.” Id.

Person argues that the evidence was insufficient to support his 

conviction of robbery as a first-degree felony. Section 3701(a) defines 

robbery as follows:

(a) Offense defined.--

(1) A person is guilty of robbery if, in the course of 

committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts 

him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to 

commit any felony of the first or second 

degree;

(iv) inflicts bodily injury upon another or 

threatens another with or intentionally puts 

him in fear of immediate bodily injury;

(v) physically takes or removes property from 

the person of another by force however slight; 

or
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(vi) takes or removes the money of a financial 

institution without the permission of the 

financial institution by making a demand of an 

employee of the financial institution orally or in 

writing with the intent to deprive the financial 

institution thereof.

***

(b) Grading.--

(1) Except as provided under paragraph (2), 

robbery under subsection (a)(1)(iv) and (vi) is 

a felony of the second degree; robbery under 

subsection (a)(1)(v) is a felony of the third 

degree; otherwise, it is a felony of the first 

degree.

18 Pa.C.S.A. § 3701(a)(1),(b). 

Person was convicted under subsection (a)(1)(ii), which requires that 

in the course of committing the theft, the actor “threatens another with or 

intentionally puts him in fear of immediate serious bodily injury[.]” 

18 Pa.C.S.A. § 3701(a)(1)(ii).6 Presently, Person argues that the evidence 

was insufficient to support a finding that Person and/or Flamer possessed a 

gun and therefore threatened, or intentionally placed White in fear of, 

immediate bodily injury. See Person’s Brief at 35. Person argues 

essentially that because White could not state unequivocally that Person 

 

6

 “Serious bodily injury” is defined as “[b]odily injury which creates a 

substantial risk of death or which causes serious, permanent disfigurement, 

or protracted loss or impairment of the function of any bodily member or 

organ.” 18 Pa.C.S.A. § 2301. 
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possessed a gun, the evidence was insufficient to establish commission of 

robbery under section 3701(a)(1)(ii). See id. We disagree. 

The evidence, viewed in the light most favorable to the 

Commonwealth, establishes that Person and Flamer surrounded White while 

he was sitting down. N.T., 1/16/13, at 50. They stood so close to White 

that he could not stand up or move. Id. Flamer demanded that White 

empty his pockets. Id. at 51. White responded that he did not have 

anything and held out the five dollars that he had on his person. Id. at 52. 

Flamer then went through the pockets on White’s coat and pants and 

discovered only a cellular phone and a partial pack of Newport 100 

cigarettes. Id. In an aggravated tone of voice, Flamer then told Person to 

“pull out the ratchet.” Id. at 53. White understood “ratchet” to mean gun. 

Id. at 54. At that time, Person pulled out something that he had concealed 

on his hip, but kept it close against his waist. Id. at 53, 55. White glanced 

at the object and saw what looked like the barrel of a gun.

7

 Id. at 56. With 

the object exposed, Flamer asked the victim if he had anything else. White 

responded in the negative, and Flamer went through his pockets once more 

before leaving the store with Person, as well as with White’s phone, 

cigarettes and money. Id. at 57. White testified that he was nervous 

 

7

 White testified that he did not keep looking at the object, opting instead to 

“look in their eyes to kind of go with their body language to see what was 

going to happen next.” N.T., 1/16/13, at 56. 
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during the encounter because “he wasn’t sure what was going to happen.” 

Id. at 68. 

This evidence establishes that Person and Flamer physically restricted 

White and brandished a gun while demanding that White give them his 

possessions. We conclude that in this case, the displaying of a gun while 

issuing demands is sufficient to establish that Person threatened or 

intentionally placed the victim in fear of immediate serious bodily injury. 

See 18 Pa.C.S.A. § 3701(a)(1)(ii). 

For his final issue on appeal, Person argues that his verdict with 

respect to his robbery as a first-degree felony conviction was against the 

weight of the evidence. Person’s Brief at 31-32. Our standard of review 

when presented with a weight of the evidence claim is different from that 

applied by a trial court:

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the 

evidence. 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. 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.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014). 

Therefore, “an appellate court reviews the exercise of the trial court’s 
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discretion; it does not answer for itself whether the verdict was against the 

weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135-

36 (Pa. 2011). Importantly, “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.” Id.

We conclude that the trial court did not abuse its discretion in 

determining that Person’s robbery verdict was not against the weight of the 

evidence. In arguing to the contrary, Person places much emphasis on the 

fact that White, who was the Commonwealth’s primary witness, was 

previously convicted of a crime of dishonesty and therefore, in Person’s 

view, not a reliable witness. Person’s Brief at 31. Credibility determinations 

are for the jury to make “and review of the jury’s credibility determinations 

is not for the trial court to undertake.” Commonwealth v. Gonzalez, 109 

A.3d 711, 724 (Pa. Super. 2015). Here, the jury weighed the evidence 

presented, evaluated White’s testimony, and evidently found him credible, 

as it was entitled to do.

Moreover, as we established above, the certified record reflects that 

Person and Flamer physically restricted White and that White believed 

Flamer told Person to get out a gun while demanding that White give them 

his possessions. See N.T., 1/16/13, at 50-53, 55-57. The trial court did not 

abuse its discretion in determining that the jury verdict here was not so 
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contrary to the evidence that it shocks one’s sense of justice. Accordingly, 

Person’s weight of the evidence claim fails.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/14/2015