J. S30027/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

WILLIAM VOSE, : No. 3076 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, October 16, 2014,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0003865-2013

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 23, 2015

William Vose appeals from the judgment of sentence of October 16, 

2014, following his conviction of one count of conspiracy to commit robbery. 

We affirm.

The trial court has set forth the procedural history of this matter as 

follows: 

A jury found defendant guilty on June 18, 

2014, of one count of conspiracy to commit robbery. 

He was found not guilty of robbery. This court 

sentenced defendant on October 16, 2014, to three 

to 10 years in prison and a consecutive five-year 

period of probation.

Defendant, through counsel, filed a timely 

post-sentence motion on October 21, 2014. He 

alleged the sentence imposed was unduly harsh and 

excessive and requested a reconsideration of the 

length of the prison term. He also moved for a new 

trial on the ground the verdict was against the 
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weight of the evidence and moved for judgment of 

acquittal or a new trial on the ground the evidence 

failed to establish each element of the crimes 

charged and the commission thereof by defendant. 

Finally, defendant requested a new trial on the basis

of alleged after-discovered evidence.

Before this court addressed the motion, 

defendant filed a notice of appeal on October 28, 

2014. That same day, this court issued an Order 

directing defendant to amend his post-sentence 

motion within 10 days to assert with specificity the 

basis for the claim of after-discovered evidence. 

Defendant did not file an amended petition. This 

court denied the post-sentence motion in an Order 

dated November 13, 2014, and directed defendant to 

file within 21 days a concise statement of issues in 

accordance with Pennsylvania Rule of Appellate 

Procedure 1925(b). Defendant complied with that 

directive.

Trial court opinion, 1/5/15 at 1-2.

Appellant has raised the following issues for this court’s review:

1. Whether the trial court was in error when it 

ruled against Defendant’s Post Trial Motion in 

which Defendant submitted and averred that 

the underlying sentence imposed was unduly 

harsh and excessive as it relates to the length 

of the prison term and to mitigation testimony 

presented? 

2. Whether the trial [court] was in error when it 

ruled against Defendant’s Post Trial Motion in 

which Defendant submitted that the underlying 

jury’s verdict was against the weight and 

sufficiency of the evidence and demonstrated a 

reasonable doubt [as] to whether the 

Defendant had committed the crimes in which 

he was charged? 

3. Whether the trial [court] was in error when it 

ruled against Defendant’s Motion for Judgment 
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of Acquittal in which the Defendant submitted 

that the Commonwealth failed to present 

sufficient evidence for the trier of fact to find 

the Defendant guilty of the crimes in which he 

was charged and because the evidence failed 

to establish each material element of the 

crimes charge[d] and the commission thereof 

by the Defendant beyond a reasonable doubt? 

Appellant’s brief at 5.

Before we may address the merits of the issues raised on appeal, we 

must address the Commonwealth’s contention that the appeal should be 

quashed. According to the Commonwealth, the trial court lost jurisdiction 

when appellant filed a premature notice of appeal on October 28, 2014, prior 

to disposition of his post-sentence motion. Therefore, the Commonwealth 

characterizes the trial court’s November 13, 2014 order denying appellant’s 

post-sentence motion as a legal nullity. We disagree.

We addressed a similar scenario in Commonwealth v. Rojas, 874 

A.2d 638 (Pa.Super. 2005), in which the appellant filed a notice of appeal 

prior to disposition of his post-sentence motion. Id. at 641. As in this case, 

the Commonwealth argued that the appeal divested the lower court of 

jurisdiction over the previously filed post-sentence motion, and, therefore, 

the order dismissing the appellant’s post-sentence motion was a nullity, 

entered without jurisdiction. Id. Citing Commonwealth v. Borrero, 692 

A.2d 158 (Pa.Super. 1997), this court disagreed, finding that because, 

pursuant to Pa.R.Crim.P. 720, the judgment of sentence does not become 

final for appeal purposes until the trial court disposes of the post-sentence 
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motion or it is denied by operation of law, the appellant’s direct appeal was 

improperly filed from a non-final order and did not divest the trial court of 

jurisdiction to decide his post-sentence motion. Id. at 643. As this court 

explained in Borrero, where the appellant also filed a premature direct 

appeal before his timely post-sentence motions were disposed of by the trial 

court or denied by operation of law:

[T]he appeal did not divest the trial court of 

jurisdiction in this instance. As previously indicated, 

the comment to Rule [720] explicitly prohibits the 

filing of an appeal while post-sentencing motions are 

pending. Comment to Pa.R.Crim.P., Rule [720], 

42 Pa.C.S.A., supra. The comment further provides 

that a judgment of sentence does not become final 

until post-sentencing motions are ruled upon by the 

trial court or are denied by operation of law. Id. 

Moreover, a trial court may proceed further in any 

matter in which a nonappealable order has been 

entered, notwithstanding the filing of a notice of 

appeal. Pa.R.A.P., Rule 1701(b)(6), 42 Pa.C.S.A. 

Consequently, appellant’s improper appeal did not 

divest the trial court of jurisdiction to decide 

appellant’s post-sentencing motion or deny it by 

operation of law.

Id., quoting Borrero, 692 A.2d at 161 n.4. Thus, when the trial court 

denied appellant’s post-sentence motion on November 13, 2014, appellant’s 

judgment of sentence became final for appeal purposes. Despite having 

filed a premature notice of appeal, the instant appeal is not from an 

interlocutory judgment of sentence and this court has jurisdiction. See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a 
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determination but before the entry of an appealable order shall be treated as 

filed after such entry and on the day thereof.”).

In his first issue on appeal, appellant challenges the discretionary 

aspects of sentencing. Appellant argues that the trial court failed to put 

reasons on the record justifying an upward departure from the standard 

range of the sentencing guidelines.

“A challenge to the discretionary aspects of a sentence requires the 

claimant to set forth in his brief a separate, concise statement of the reasons 

relied upon for the allowance of appeal as to that challenge.” 

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002), appeal 

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005), 

citing Commonwealth v. Eby, 784 A.2d 204, 206 n.2 (Pa.Super. 2001), in 

turn citing Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 522 A.2d 

17 (Pa. 1987). Appellant has complied with this requirement. (Appellant’s 

brief at 8.)

This Court may reach the merits of an appeal 

challenging the discretionary aspects of a sentence 

only if it appears that a substantial question exists as 

to whether the sentence imposed is not appropriate 

under the Sentencing Code. “A substantial question 

will be found where the defendant advances a 

colorable argument that the sentence imposed is 

either inconsistent with a specific provision of the 

code or is contrary to the fundamental norms which 

underlie the sentencing process. A claim that the 

sentencing court imposed an unreasonable sentence 

by sentencing outside the guideline ranges presents 

a ‘substantial question’ for our review.”
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Griffin, supra, quoting Eby, supra.

The matter of sentencing is vested within the sound 

discretion of the trial court; we only reverse the 

court’s determination upon an abuse of discretion. 

To demonstrate that the trial court has abused its 

discretion, the appellant must establish, by reference 

to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision. 

Moreover, 42 Pa.C.S.A. § 9721(b) provides that the 

trial court must disclose, on the record, its reasons 

for imposing the sentence.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004) 

(citations and internal quotation marks omitted). “[T]he sentencing judge 

must state of record the factual basis and specific reasons which compelled 

him or her to deviate from the guideline ranges. When evaluating a claim of 

this type, it is necessary to remember that the sentencing guidelines are 

advisory only.” Griffin, supra at 8, citing Eby, supra.

Here, appellant received an aggravated range sentence of 3-10 years’ 

incarceration. The trial court explained at sentencing that appellant failed to 

appreciate the seriousness of his conduct or take responsibility for his crime. 

(Trial court opinion, 1/5/15 at 4.) Appellant was only interested in himself 

and did not demonstrate any empathy towards the victim. (Id.) Appellant 

characterized the victim as “a drug dealer and somebody robbed him.” 

(Notes of testimony, 10/16/14 at 26.) Appellant sought to minimize the 

incident, remarking that, “It was against the law. But I feel like it is worse 

than what it really was, you know.” (Id. at 27.) Appellant continued to 
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deny his involvement, allowing only that, “I did know about it.” (Id. at 26.) 

Appellant focused on himself and his punishment, lamenting that,

being in jail has not helped me at all, it is not helping 

my family. And I understand that there is a justice 

system and, you know, there is [sic] rules, you 

know, but I feel like I have changed a lot and I feel 

like my family deserves to have me there and my 

son deserves to have me there.

Id. at 25.

In addition, the alleged robbery involved the use of a firearm which 

was discharged. (Trial court opinion, 1/5/15 at 4.) As the trial court 

remarked, appellant is fortunate that no one was injured. (Id.) Finally, the 

trial court considered the information contained in the pre-sentence 

investigation report. (Id.) “Where the sentencing judge had the benefit of 

a pre-sentence report, it will be presumed that he was aware of relevant 

information regarding appellant’s character and weighed those 

considerations along with the mitigating statutory factors.” 

Commonwealth v. Fullin, 892 A.2d 843, 849-850 (Pa.Super. 2006), 

quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001). The 

trial court placed sufficient reasons on the record justifying an aggravated 

range sentence. Appellant’s discretionary aspects of sentencing claim fails.1

 

1 Appellant argues that the trial court mistakenly stated the firearm was 

discharged three times, when the testimony indicated the firearm was 

discharged only once. (Appellant’s brief at 10.) However, this apparent 

discrepancy did not appear to be crucial to the trial court’s disposition.
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Next, appellant argues that the jury’s verdict was against the weight of 

the evidence. Appellant argues that the victim, Tyler Smith (“Smith”), 

lacked credibility as a drug dealer and was not able to identify appellant. 

(Appellant’s brief at 13.) Appellant also states that his co-conspirator, 

Lauren Caroluzzi (“Caroluzzi”), agreed to an open plea to third-degree 

robbery in exchange for her testimony against appellant. (Id.) Appellant 

paints Caroluzzi as a biased witness with a motive to lie. Caroluzzi admitted 

that the robbery was her idea. (Id.) Appellant testified on his own behalf 

and denied any participation in the robbery.

A weight of the evidence claim concedes 

that the evidence is sufficient to sustain 

the verdict, but seeks a new trial on the 

ground that the evidence was so 

one-sided or so weighted in favor of 

acquittal that a guilty verdict shocks 

one’s sense of justice.

Commonwealth v. Lyons, Pa. , 79 A.3d 

1053, 1067 (2013).

The Pennsylvania Supreme Court has 

reiterated the proper standard of review of a weight 

claim as follows:

A motion for a new trial based on a claim 

that the verdict is against the weight of 

the evidence is addressed to the 

discretion of the trial court. A new trial 

should not be granted because of a mere 

conflict in the testimony or because the 

judge on the same facts would have 

arrived at a different conclusion. Rather, 

“the role of the trial judge is to 

determine that ‘notwithstanding all the 

facts, certain facts are so clearly of 
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greater weight that to ignore them or to 

give them equal weight with all the facts 

is to deny justice.’” It has often been 

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.”

An appellate court’s standard of review 

when presented with a weight of the 

evidence claim is distinct from the 

standard of review applied by the 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 and that a new trial 

should be granted in the 

interest of justice.
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This does not mean that the exercise of 

discretion by the trial court in granting or 

denying a motion for a new trial based 

on a challenge to the weight of the 

evidence is unfettered. In describing the 

limits of a trial court’s discretion, we 

have explained:

The term “discretion” imports 

the exercise of judgment, 

wisdom and skill so as to 

reach a dispassionate 

conclusion within the 

framework of the law, and is 

not exercised for the purpose 

of giving effect to the will of 

the judge. Discretion must 

be exercised on the 

foundation of reason, as 

opposed to prejudice, 

personal motivations, caprice 

or arbitrary actions. 

Discretion is abused where 

the course pursued 

represents not merely an 

error of judgment, but where 

the judgment is manifestly 

unreasonable or where the 

law is not applied or where 

the record shows that the 

action is a result of partiality, 

prejudice, bias or ill-will.

Commonwealth v. Clay, Pa. , 64 A.3d 

1049, 1054–1055 (2013) (citations omitted) 

(emphasis in original).

Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014), 

appeal denied, 99 A.3d 925 (Pa. 2014).

Caroluzzi testified that on December 25, 2012, Christmas Day, 

appellant invited her to his grandmother’s house for Christmas dinner. 
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(Notes of testimony, 6/16/14 at 56.) Caroluzzi and appellant were close 

friends and had known each other for three or four years. (Id. at 57-58.) 

After dinner, appellant confided to Caroluzzi that he owed someone money 

who was “going to come after him.” (Id. at 58.) Caroluzzi suggested 

robbing a drug dealer of a quarter pound of marijuana and then selling the 

drugs for a profit. (Id.) Appellant readily agreed, without hesitation. (Id.

at 58-59.)

Caroluzzi called a friend of hers, Smith, and asked if he would be able 

to sell her a quarter pound of marijuana. (Id. at 59.) Caroluzzi chose Smith 

because he is of small stature and she knew he would agree to do it. (Id. at 

59-60.) Smith picked Caroluzzi up in his car and they drove to appellant’s 

cousin’s house, where the transaction was to take place. (Id. at 62.) 

Caroluzzi testified that they did not discuss using a gun; she told appellant 

that Smith was “a little kid” and he would be able to physically overpower 

him and take the marijuana. (Id. at 63.)

When they arrived and exited the vehicle, appellant came out of the 

bushes with a shotgun. (Id. at 67.) Caroluzzi testified that appellant fired 

the shotgun and took the marijuana, as well as Smith’s car keys, and ran. 

(Id.) Caroluzzi could not see where appellant was pointing the gun when he 

fired, but as far as she could tell, he was not pointing it at Smith. (Id. at 

67-68.) Caroluzzi and appellant ran to a friend’s house where they smoked 

marijuana. (Id. at 68.) When Caroluzzi asked appellant why he brought the 
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gun, appellant replied that it was the only way to frighten Smith into giving 

up the marijuana. (Id. at 69.) Later, when Caroluzzi’s stepmother 

confronted appellant about the incident, appellant was crying and saying he 

was sorry. (Id. at 142.)

Smith testified that he agreed to sell Caroluzzi a quarter pound of 

marijuana for $1,400. (Id. at 84-85.) As they were walking into the yard, 

he heard a gunshot and fell, but could not see the gunman. (Id. at 89.) A 

male individual came up from behind and told him to give up the bag of 

marijuana. (Id. at 90-91.) They then took the bag and left. (Id. at 92.) 

Leigh-Ann Kelly, an area resident, testified that in the early morning hours of 

December 26, 2012, she heard a single gunshot. (Id. at 51-52.)

Clearly, as the trial court states, the jury was free to reject appellant’s 

version of events and credit the testimony of Caroluzzi and Smith. (Trial 

court opinion, 1/5/15 at 5.) Caroluzzi testified that appellant readily agreed 

to the robbery and was, in fact, the man with the shotgun. Issues regarding 

bias and credibility, including the fact that additional charges against 

Caroluzzi were withdrawn in exchange for her truthful testimony, were for 

the jury. The trial court did not abuse its discretion in rejecting appellant’s 

weight of the evidence claim.

Finally, appellant challenges the sufficiency of the evidence to support 

the jury’s verdict. Appellant argues that Caroluzzi’s testimony was tainted 

and that the jury clearly did not find her wholly credible, as evidenced by 
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their not guilty verdict on the robbery charge. (Appellant’s brief at 14.) 

Appellant also claims that Caroluzzi’s testimony was contradicted by one of 

his witnesses. (Id.)

In his Rule 1925(b) statement, appellant frames the issue as:

The Honorable Court was in error when it ruled 

against the Defendant’s Motion for Judgment of 

Acquittal where the Defendant submits that the 

Commonwealth failed to present sufficient evidence 

for the trier of fact to find to find [sic] the Defendant 

guilty of the crimes charged and because the 

evidence failed to establish each material element of 

the crimes charged and the commission thereof by 

the Defendant beyond a reasonable doubt.

Docket #44. Appellant’s post-sentence motion was similarly boilerplate. 

Appellant does not specify which particular elements of the offense were not 

met. Appellant does not state how or why the evidence was insufficient.

In Commonwealth v. Williams, 959 A.2d 1252, 

1257 (Pa.Super. 2008), this Court stated, “[i]f 

Appellant wants to preserve a claim that the 

evidence was insufficient, then the 1925(b) 

statement needs to specify the element or elements 

upon which the evidence was insufficient. This Court 

can then analyze the element or elements on 

appeal.”

Commonwealth v. Manley, 985 A.2d 256, 261-262 (Pa.Super. 2009), 

appeal denied, 996 A.2d 491 (Pa. 2010). “As this Court stated in 

Williams, the 1925(b) statement is required to determine ‘[w]hich elements 

of which offense[s] were unproven? What part of the case did the 

Commonwealth not prove?’” Id. at 262, quoting Williams, 959 A.2d at 

1257.
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Appellant’s boilerplate Rule 1925(b) statement is manifestly 

inadequate to preserve the issue. Furthermore, the arguments appellant 

makes now, that Caroluzzi was not credible and that her testimony conflicted 

with that of another witness, really go to the weight of the evidence, not its 

sufficiency.2 We agree with the trial court that viewing the evidence in the 

light most favorable to the Commonwealth, as verdict winner, it was 

sufficient to establish each element of the crime of conspiracy to commit 

robbery. (Trial court opinion, 1/5/15 at 7.)

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/2015

 

2 The law is well settled that a sufficiency argument 

that is founded upon a mere disagreement with the 

credibility determinations made by the fact finder, or 

discrepancies in the accounts of the witnesses, does 

not warrant the grant of appellate relief, for [i]t is 

within the province of the fact finder to determine 

the weight to be accorded each witness’s testimony 

and to believe all, part, or none of the evidence 

introduced at trial. 

Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa.Super. 2006), appeal 

denied, 923 A.2d 1173 (Pa. 2007) (quotation marks and citations omitted). 

“Moreover, a verdict may be predicated upon the uncorroborated testimony 
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of an accomplice.” Commonwealth v. Mikell, 729 A.2d 566, 570 (Pa. 

1999) (citation omitted).