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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CLINTON BROWN

Appellant No. 1046 EDA 2016

Appeal from the Judgment of Sentence August 13, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004946-2014

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CLINTON BROWN

Appellant No. 3151 EDA 2015

Appeal from the Judgment of Sentence August 13, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0004944-2014

BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 24, 2017
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Clinton Brown appeals from his judgments of sentence1entered in the 

Court of Common Pleas of Philadelphia County, following his conviction for 

robbery,2conspiracy to commit robbery,3and conspiracy to commit 

aggravated assault.4 Upon review, we affirm.

Sharday Williams testified that on January 30, 2014, she and her 

boyfriend, Derrick Moye, left Moye’s house and were approaching her car 

when Brown approached her from behind, snatched her wallet, and started 

running. When Moye started to chase after Brown, Rasheed Hall stepped 

out from in front of a parked car and fired one shot into Moye’s chest from 

approximately one foot away. Brown and Hall then fled together on foot, 

running in the same direction. When the police arrived, Williams described 

the assailant who stole her wallet as a black male in his twenties who was 

six feet and one inch tall, with a thin build and brown complexion, and 

wearing a black hoodie and black pants. Williams described the shooter as 

wearing a black jacket with a “Dickies” brand logo on the front and blue 

pants. 

____________________________________________

1 This Court has consolidated these appeals, sue sponte, pursuant to 

Pa.R.A.P. 513.

2 18 Pa.C.S. § 3701.

3 18 Pa.C.S. § 903. 

4

Id.
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Philadelphia Police Officer Matthew Lally testified that on January 30, 

2014, he was working in the neighborhood where the robbery occurred when 

he received information about the shooting and robbery and received a 

“flash” description of one of the assailants. The flash information described 

one assailant as a black male in his twenties with a thin build, facial tattoos, 

and a black hoodie. Based on his experience as an officer for the 39th Police 

District for ten years, and his numerous interactions with Brown during that 

time, Officer Lally knew that Brown matched the flash description. Officer 

Lally went to Brown’s home and spoke with his mother. While there, Brown 

called his mother, and Officer Lally got on the phone and asked Brown where 

he was. Brown claimed to be with his girlfriend in West Philadelphia. Officer 

Lally left the house, and continued searching for Brown. Approximately 

twenty to thirty minutes later, Officer Lally found Brown, together with Hall 

and a third man, several blocks away. 

Williams was brought to the street where Brown and Hall had been 

detained. She identified Brown as the one who had robbed her and Hall as 

the one who had shot Moye. Williams testified that her identification of them 

was based solely on their clothing. Brown and Hall were then taken into 

custody, and their cell phones were confiscated during a search incident to 

arrest. Although Hall’s phone was locked, investigators secured access to 

Brown’s phone. The call logs of Brown’s phone listed multiple calls to and 

from a contact listed as “Sheed,” including two calls immediately after the 

shooting. When investigators called this number, Hall’s phone rang. 
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Investigators obtained a warrant to search Hall’s home, where they 

discovered several rounds of ammunition. Among the ammunition were 

fourteen .22 caliber rounds. A silver .22 caliber revolver was found roughly 

one block from Brown’s house. The gun had five live rounds and one spent 

casing. Hall’s clothes tested positive for gunpowder residue. 

Detective Ted Wolkiewicz testified that he interviewed Brown on 

January 31, 2014. During the interview, Brown refused to sign any 

statements prepared by Detective Wolkiewicz, but admitted verbally that he 

was the one who had grabbed Williams’ wallet, although he did not know 

that Hall had a gun at the time. Despite this admission, Brown attempted to 

procure alibi testimony from an ex-girlfriend, Tyenesha Leach. However, in 

Leach’s statement to Detective Wolkiewicz, she admitted that she was not 

with Brown that night, and she was testifying because Brown had asked her 

to support him. 

Brown was charged in two separate dockets, one of which contained 

the charge for conspiracy to commit aggravated assault (Brown I) and the 

other which contained the charges for robbery and conspiracy to commit 

robbery (Brown II). However, these two dockets were consolidated for the 

purpose of trial. A jury convicted Brown on May 22, 2015. On August 13, 

2015, Brown was sentenced to 72 to 144 months’ imprisonment for criminal 

conspiracy to commit aggravated assault, 102 to 204 months’ imprisonment 

for robbery, and 78 to 156 months’ imprisonment for conspiracy to commit 

robbery. The robbery and conspiracy to commit robbery sentences were 
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ordered to run concurrent to each other, while the conspiracy to commit 

aggravated assault sentence was ordered to run consecutive to the other 

sentences. On August 24, 2015, Brown filed a post-sentence motion for 

reconsideration of sentence for the Brown I charges, which was denied on 

September 17, 2015. On April 4, 2016, Brown filed a timely notice of appeal 

for Brown I. On April 4, 2016, Brown filed a timely notice of appeal nunc 

pro tunc for Brown II. Brown filed a Pa.R.A.P. 1925(b) concise statement 

of errors complained of on appeal on February 16, 2016 for Brown I. 

Brown filled a Rule 1925(b) concise statement of errors complained of on 

appeal on April 4, 2016 for Brown II. The trial court filed its Rule 1925(a) 

opinion for Brown I on May 2, 2016, and its Rule 1925(a) opinion for 

Brown II on July 1, 2016.5 

Brown raises the following issues on review:

A. Did the trial court err when it found that there was sufficient 

evidence to prove beyond a reasonable doubt, the crimes of 

robbery, criminal conspiracy (to commit robbery) and criminal 

conspiracy (to commit aggravated assault)?

B. Did the trial court err when it sentenced appellant Clinton 

Brown to a term of incarceration which departed from the 

Pennsylvania sentencing guidelines for the criminal offenses of 

robbery and criminal conspiracy (to commit aggravated assault) 

and was in the aggravated range for criminal conspiracy (to 

commit robbery) which was manifestly excessive?

Brief of Appellant, at 2.

____________________________________________

5 The trial court filed the same Rule 1925(a) opinion for both appeals.
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Brown first claims that there was insufficient evidence to support his 

conviction. Our standard of review upon a challenge to the sufficiency of the 

evidence is well settled:

The standard we apply in reviewing the sufficiency of the 

evidence is whether 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. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment for 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any 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. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, 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. 

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), 

quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 

2000) (citations and quotation marks omitted). 

Brown does not argue that the elements of robbery or aggravated 

assault were not satisfied, but instead argues that the evidence was 

insufficient to prove his identity as one of the two men involved in the 

robbery. In addition, Brown argues that there was insufficient evidence to 

show that Brown and Hall entered into a conspiracy. Both of these 

argument lack merit.
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As to Brown’s first argument, he relies on the fact that Williams never 

saw his or Hall’s face and on the fact that Williams’s identification of them 

was based solely on clothing. He contends, therefore, that identity could not 

be proven beyond a reasonable doubt. “Although common items of clothing 

and general physical characteristics are usually insufficient to support a 

conviction, such evidence can be used as other circumstances to establish 

the identity of a perpetrator.” Commonwealth v. Orr, 38 A.3d 868, 874 

(Pa. Super. 2011) (en banc). 

Upon review of the record and viewing all evidence in a light most 

favorable to the Commonwealth, DiStefano, supra, we find that there was 

sufficient evidence to prove Brown’s and Hall identification and involvement 

in the robbery. First, Brown lied about his location when Officer Lally asked 

Brown where he was. Brown also tried to coerce Leach into giving false alibi 

testimony. Both of these reflect Brown’s consciousness of guilt and support 

the jury’s determination that Brown was the one who robbed Williams. 

Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990) (citation 

omitted). Hall’s identity as the shooter was supported by other evidence in 

addition to Williams’s identification. The search of Halls’ home produced 

numerous rounds of ammunition, including the type of ammunition used by 

a gun with one spent casing found near Brown’s house and the location were 

Brown and Hall were arrested. Hall’s clothing also tested positive for 

gunpowder residue. Brown’s identity of the robber was supported by his 

own admission that he was the one who grabbed Williams’s wallet. 
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Therefore, the claim that the identification was based solely on clothing is 

meritless. See Orr, 38 A.3d at 876 (finding that, while appellant’s 

identification by victim was based on clothing, evidence that appellant was 

located near location of robbery shortly after it occurred and possessed 

exact amount stolen from victim was sufficient evidence to prove identity).

Brown also argues that there was insufficient evidence to prove that 

he entered into a conspiracy with Hall in order to commit robbery and 

aggravated assault. Criminal conspiracy is defined, in relevant part, as: 

(a) Definition of conspiracy. — 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

(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(a)(1-2) (bold and italics in original). A conspiracy 

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.” Commonwealth v. Perez, 931 A.2d 

703, 708 (Pa. Super. 2007) (quoting Commonwealth v. Jones, 874 A.2d 

108, 121-22 (Pa. Super. 2005)).
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Upon review of the record and viewing all evidence in a light most 

favorable to the Commonwealth, DiStefano, supra, and given our above 

finding on identification, we find that there was sufficient evidence to prove 

that a criminal conspiracy existed. Brown argues that the fact that he and 

Hall were located together and had numerous phone calls with each other 

suggests that the two were friends. However, this evidence also supports 

the conclusion that they had an agreement to commit the robbery together 

and to use force to escape if necessary. In addition, the fact that the two 

fled together after the commission of the crime, and called each other twice 

immediately afterwards, supports the conclusion that Brown and Hall had an 

agreement to commit this crime. Therefore, we find that there was 

sufficient evidence to allow the jury to conclude beyond a reasonable doubt 

that Brown and Hall entered into a conspiracy to commit robbery and 

aggravated assault. Perez, supra.

Brown’s last claim is that his sentence was manifestly excessive. 

Initially, we note that while Brown argues in his brief that each of his three 

sentences were excessive, Brown only challenged his sentence for 

conspiracy to commit aggravated assault in his post-sentence motion for 

reconsideration of sentence. Consequently, we find that Brown waived his 

challenges of excessiveness for his robbery sentence and for his conspiracy 

to commit robbery sentence. See Pa.R.A.P. 302; see also Commonwealth 

v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (issues challenging 
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discretionary aspects of sentencing must be raised in post-sentence motion 

or during sentencing proceeding).

Brown’s claim involves a discretionary aspect of his sentence. “It is 

well-settled that appeals of discretionary aspects of a sentence are not 

reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 

592, 595 (Pa. Super. 2006). Before a challenge to the discretionary aspects 

of a sentence will be heard on the merits, an appellant must set forth in his 

brief a separate and concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a sentence. 

Pa.R.A.P. 2119(f). An appeal of the discretionary aspects of a sentence will 

only be granted when there is a substantial question that the sentence 

imposed was not appropriate under the Sentencing Code. Pa.C.S. § 9781. 

Historically, this Court has found a substantial question exists for the 

purposes of section 9781 when the Rule 2119(f) statement reveals a 

plausible argument that procedures followed by the sentencing court were 

either inconsistent with a specific provision of the Sentencing Code or 

contrary to the fundamental norms underlying the sentencing process. 

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en 

banc) (citations omitted). 

Brown has included the necessary Rule 2119(f) statement in his brief. 

In his statement, Brown argues that his sentence was an abuse of discretion 

because his prior record was generated largely from arrests when he was a 

juvenile, and the court did not adequately consider the mitigating evidence. 
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Brief of Appellant, at 14. We have consistently held that a contention that 

the trial court did not adequately consider mitigating circumstances does not 

raise a substantial question sufficient to justify appellant review of the merits 

of such a claim. Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. 

Super. 2006). Nor does Brown cite to a specific provision of the Sentencing 

Code or to a fundamental norm of the sentencing process to support his 

claim the judge’s consideration of Brown’s juvenile record was inappropriate 

under the Sentencing Code. Therefore, Brown has not presented a 

substantial question for our review, and review of the merits of his challenge 

to the discretionary aspects of his sentence is unwarranted.

Judgments of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/24/2017