J-A24025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ALEXANDER TOWNSEND, 

 Appellant No. 2765 EDA 2013 

Appeal from the Judgment of Sentence September 20, 2013 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0001612-2007 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

 

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 01, 2014 

 Appellant, Alexander Townsend, appeals from the judgment of 

sentence of an aggregate term of 6-12 years’ incarceration and 5 years’ 

probation, imposed following his conviction for robbery and related offenses. 

Appellant contends that the evidence was insufficient to establish his identity 

as the perpetrator. After careful review, we affirm.1

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1 Appellant’s attorney, John P. Cotter, Esq., initially requested oral argument 

in this case. However, immediately prior to the date set for oral argument, 

Attorney Cotter submitted this case for our consideration without oral 

argument. Such action does not typically concern us; indeed, when the 

controversy that gives rise to appellate review is adequately addressed in 

the parties’ briefs, and our review is unlikely to benefit from oral argument, 

submission without oral argument is permitted, if not encouraged. 

(Footnote Continued Next Page) 
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 The trial court summarized the facts adduced at trial as follows: 

On November 29, 2006, the victim, Mr. Walid Vargas, was 

unloading his pickup truck just outside his house at 9326 

Marsden Street in Philadelphia. At approximately 9:32 [p.m.], 

[Appellant] and his co-conspirator approached the victim 

brandishing guns. The co-conspirator held a gun to the victim's 

neck, while [Appellant] searched the victim’s pockets and 

grabbed his wallet, keys and cell phone. After stealing these 

items, the co-conspirators ordered the victim to l[ie] on the floor 

of his garage; the co-conspirators fled down the driveway and 

onto Marsden Street. The victim called 911 to report the 

robbery, and the police responded to the area within minutes. 

The victim saw [Appellant’s] face clearly. The area was 

well lit, as there were lights on the fence outside the victim’s 

house, and a motion sensor light on the house itself, all of which 

were illuminated. Moreover, [Appellant] was wearing a 

distinctive camouflage hoodie. The police apprehended 

[Appellant] within minutes of the incident, near a well-lit 

basketball court a few blocks from the victim's house. Once the 

police apprehended [Appellant], they brought the victim to the 

basketball court to ascertain whether he could identify 

[Appellant] as one of the individuals who had committed the 

(Footnote Continued) _______________________ 

However, Attorney Cotter requested oral argument in two other cases 

set to be heard by this panel on the same day. And, as he did in the instant 

case, Attorney Cotter submitted those cases for our consideration without 

oral argument immediately prior to the date set for oral argument. Indeed, 

it appears to be Attorney Cotter’s usual practice to request, but never to 

attend oral argument. 

Rule 3.2 of Pennsylvania’s Rules of Professional Conduct states that 

“[a] lawyer shall make reasonable efforts to expedite litigation consistent 

with the interests of the client.” Requesting oral argument, without any 

intention to actually attend oral argument, does not comport with the text or 

the spirit of Rule 3.2, as oral argument panels do not occur with the same

frequency as panels composed of cases where oral argument is not 

requested. Additionally, insincere requests for oral argument may serve to

delay appellate review of other cases where there is a genuine desire by 

those appellants to assist this Court’s disposition through oral advocacy. 
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robbery. By recognizing his face and the camouflage jacket, the 

victim positively identified [Appellant] as one of the individuals 

who committed the robbery. 

Trial Court Opinion (TCO), 12/26/13, at 3 (internal citations omitted). 

 On January 28, 2008, following a bench trial, the trial court found 

Appellant guilty of robbery, conspiracy to commit robbery, theft, receiving 

stolen property, firearms not to be carried without a license, carrying 

firearms in public in Philadelphia, possessing an instrument of crime, simple 

assault, recklessly endangering another person, and possession of a firearm 

by a person prohibited. On May 5, 2008, the trial court sentenced Appellant 

to concurrent terms 6-12 years’ incarceration for robbery and conspiracy, 

and a consecutive term of 5 years’ probation for theft. 

 No appeal from the May 5, 2008 sentence was taken. However, 

Appellant filed a pro se PCRA2 petition on January 20, 2009. 

Present counsel, Mr. John Cotter, Esquire[,] was appointed on 

January 21, 2011. As Judge Kane [had] retired, the Honorable 

Denis P. Cohen, Judge of the Court of Common Pleas, was 

assigned on January 30, 2012. Counsel filed an amended PCRA 

petition on January 4, 2013, alleging that the original sentence 

was illegal. In response to the PCRA petition, the 

Commonwealth agreed to a resentencing to redress the 

sentencing error by the trial court. On September 20, 2013, 

[the trial court] by agreement vacated the sentence and 

imposed a new sentence of six (6) to twelve (12) years[’] 

incarceration for [r]obbery, followed by five (5) years[’] 

probation for [c]onspiracy. The [r]obbery and [t]heft charges 

merged for sentencing. The [trial court] also restored 

[Appellant’s] appellate rights. 

____________________________________________ 

2

 Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. 
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TCO, at 2. 

 Appellant filed a timely notice of appeal from the new sentence on 

September 27, 2013. The trial court issued an order on October 1, 2013, 

directing Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant 

complied and filed a timely Rule 1925(b) statement on October 15, 2013. 

The trial court issued its Rule 1925(a) opinion on December 26, 2013. 

Appellant now presents the following questions for our review: 

1.
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incident about 3 blocks from the incident alone and did not have either a gun 

or stolen property on his person.” Id. 

Our standard of review of sufficiency claims is well-settled: 

A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to support 

the verdict when it establishes each material element of the 

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Where the evidence offered to 

support the verdict is in contradiction to the physical facts, in 

contravention to human experience and the laws of nature, then 

the evidence is insufficient as a matter of law. When reviewing a 

sufficiency claim[,] the court is required to view the evidence in 

the light most favorable to the verdict winner giving the 

prosecution the benefit of all reasonable inferences to be drawn 

from the evidence. 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted). 

Appellant’s claims regarding his identity as the perpetrator of the 

robbery in this case go to the weight of the evidence, not to its sufficiency. 

Here, Appellant was identified immediately after the robbery by the

complainant (victim), and again during Appellant’s trial. The fact that no 

corroborating physical evidence exists does present an apparent conflict in 

the evidence. However, it does not entitle Appellant to relief because “[a] 

mere conflict ... does not render the evidence insufficient[.]” 

Commonwealth v. Halye, 719 A.2d 763, 764 (Pa. Super. 1998). “[I]t is 

within the province of the fact finder to determine the weight to be given to 

the testimony and to believe all, part, or none of the evidence.” Id. 
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Appellant’s claim does not present a situation “[w]here the evidence 

offered to support the verdict is in contradiction to the physical facts, in 

contravention to human experience and[/or] the laws of nature[.]” 

Widmer, 744 A.2d at 751. The lack of corroborating evidence does not 

even contradict the complainant’s identification of Appellant – it merely 

conflicts with it. And, as this Court has noted before, “an absence of 

evidence is not evidence of absence.” Commonwealth v. Heilman, 867 

A.2d 542, 547 (Pa. Super. 2005). Appellant has not cited any authority 

holding that because he did not have any incriminating evidence on his 

person when arrested, such as the weapon used or the property stolen, the 

court was precluded from finding the victim’s identification testimony 

credible. Moreover, as this Court stated in Commonwealth v. Clay, 546 

A.2d 101 (Pa. Super. 1988), “a positive, unqualified identification of [a] 

defendant by one witness is sufficient for conviction even though half a 

dozen witnesses testify to an alibi.” Id. at 104. 

We conclude, therefore, that the victim’s testimony was sufficient to 

support Appellant’s identity as the perpetrator. See id. To the extent that 

Appellant complains that this identification testimony conflicts with other 

evidence, or the absence of other evidence, such a claim goes to the weight

of the evidence, and not its sufficiency, and Appellant did not raise a 

challenge to the weight of the evidence in his Rule 1925(b) statement. 

Accordingly, any challenge to the weight of the evidence has been waived. 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not 
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raised in a 1925(b) statement will be deemed waived.”).

 Judgment of sentence affirmed. 

Judge Platt joins in the memorandum. 

President Judge Gantman concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/1/2014