Com. v. Ahner, S.

• Court: Superior Court of Pennsylvania
• Decided: March 25, 2019
• Docket: 547 MDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN GLENN AHNER : : Appellant : No. 547 MDA 2018

Appeal from the Judgment of Sentence November 2, 2017 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001510-2017

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY LAZARUS, J.: FILED: MARCH 25, 2019

Steven Glenn Ahner appeals from the judgment of sentence, entered in

the Court of Common Pleas of Berks County, following his convictions for

robbery,1 burglary,2 terroristic threats,3 possession of instruments of crime

(“PIC”)4 and related convictions.5 On appeal, Ahner challenges the sufficiency

of the evidence, the weight of the evidence, the jury’s application of the

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1 18 Pa.C.S.A. § 3701(a)(1)(ii).

2 18 Pa.C.S.A. § 3502(a)(1)(i).

3 18 Pa.C.S.A. § 2706(a)(1).

4 18 Pa.C.S.A. § 907(a).

5 The following convictions merged for purposes of sentencing: criminal trespass, theft by unlawful taking, recklessly endangering another person (“REAP”), simple assault, and harassment. J-A02012-19

reasonable doubt standard, and the discretionary aspects of his sentence.

After careful review, we affirm.

At approximately 10:00 p.m. on February 4, 2017, Debra Seip answered

her front door. She was confronted by an unknown man, clad in black and

carrying a gun. The intruder forced Seip to call for her granddaughter, Amber

Smith, who came down from the second floor. Smith saw the intruder next

to her grandmother wearing head-to-toe dark clothing, with his face concealed

by a bandana and a beanie-style hat, holding a revolver in a gloved hand.

When the intruder demanded money, Seip stalled, faking an asthma attack so

she could relocate to a chair near a phone the intruder had not noticed. Seip

then argued with the intruder over his demands, ultimately turning over

approximately $200 in a bank envelope. Unsatisfied, the intruder made clear

he knew Seip had considerably more money upstairs in a safe. Seip, in fact,

had inherited a sizeable sum from her mother and kept it upstairs in a hotel

safe. Smith led the intruder upstairs to the middle bedroom, where he opened

the closet, found two safes—one containing cash, and the other, financial

documents—and took both.

The moment Smith and the intruder reached the second floor, Seip

surreptitiously called 911. Meanwhile, the intruder spent five to ten minutes

trying to locate keys for the safes before giving up and taking the safes

themselves. Smith’s two small dogs further delayed the intruder when he

came back downstairs by jumping on him until he dropped the safes. After

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collecting the safes, he exited the front door, followed closely by Seip. Owing

to Seip’s quick action and the intruder’s delays, the police arrived as the

intruder exited the house. From the front of her house, Seip indicated to

Officer Thenard Caraballo that the intruder ran towards Centre Street, a dimly

lit, nearby alley. Officer Caraballo observed a man walking briskly into the

darkened portion of Centre Street, chased the suspect down, and ordered him

to the ground. Officer Caraballo’s partner quickly arrived on the scene,

handcuffed the suspect, searched his person, and recovered a BB gun. The

officers located the stolen safes under a car approximately 60 feet from where

the suspect was handcuffed. The suspect, later identified as Ahner, was

apprehended with $240 on his person, and wearing a black hooded zip-up

jacket, grey slacks, black sneakers, white batting gloves, a black beanie, and

a bandana around his neck. There were no other individuals on the street

when Ahner was apprehended. The next morning the police recovered a

loaded revolver, fitting the description provided by the victims, approximately

five feet from where Ahner was arrested, but failed to locate the bank

envelope.

On September 27, 2017, following a trial presided over by the Honorable

Patrick T. Barrett, the jury convicted Ahner of robbery (two counts), burglary,

criminal trespass, theft by unlawful taking, terroristic threats, simple assault,

REAP, and PIC. The court also found Ahner guilty of the summary offense of

harassment. On November 2, 2017, Judge Barrett sentenced Ahner to an

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aggregate term of 10 to 30 years’ imprisonment with 5 years’ probation

running concurrently to his sentence of incarceration.6 Ahner filed post-

sentence motions, which the court denied. He subsequently filed a timely

notice of appeal7 and a court-ordered statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

Ahner raises the following issues for our review:

1) Whether [the] Commonwealth presented sufficient evidence to identify [Ahner] as the perpetrator beyond a reasonable doubt.

2) Whether the trial court abused its discretion when it permitted guilty verdicts that were against the weight of the evidence, particularly verdicts that were wholly reliant on circumstantial, inconsistent, vacuous evidence.

3) Whether [Ahner] received a fair and constitutional trial when the jury displayed reasonable doubt, but then issued guilty verdicts despite harboring such doubts.

4) Whether the trial court’s sentence of an aggregate ten (10) to thirty (30) years[’] incarceration with probation was manifestly ____________________________________________

6 Ahner’s sentence is broken down as follows: 4 to 10 years’ imprisonment for the first count of robbery, with 271 days’ credit for time served; 4 to 10 years’ imprisonment for the second count of robbery to run consecutively to the first; 2 to 10 years’ imprisonment for burglary to run consecutively to the second robbery conviction; 5 years’ probation for terroristic threats and PIC, both set to run concurrently to his sentence of incarceration. Ahner’s remaining convictions merged for purposes of sentencing.

7 The clerk of courts initially failed to serve upon Ahner or his attorney Judge Barrett’s February 2, 2018 order denying Ahner’s post-sentence motion or enter the order on the docket. On March 5, 2018, the court became aware the order had not been served. On March 6, the clerk of courts entered the order and served it pursuant to Pa.R.Crim.P. 114, making Ahner’s March 27, 2018 notice of appeal timely filed. See Pa.R.A.P. 108 (computing time period under Pennsylvania Rules of Appellate Procedure from date clerk of courts serves notice to parties).

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unjust and unreasonable, considering [Ahner] had no prior criminal record, was a functional member of society, and was a struggling addict.

Brief of Appellant, at 14–15.

Appellant attacks the sufficiency of the evidence underpinning his

convictions on identical grounds, alleging the Commonwealth presented

insufficient evidence to identify him, beyond a reasonable doubt, as the

intruder who entered Seip’s home.

We review claims regarding the sufficiency of the evidence by considering 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. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact— while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder.

Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)

(citations and quotations omitted).

In addition to furnishing the finder of fact with sufficient evidence to

prove every element of each crime beyond a reasonable doubt, the

Commonwealth is obligated to establish, beyond a reasonable doubt, the

identity of the defendant as the individual who perpetrated the crimes. Id.

Although challenges to identity generally speak to the weight of the evidence,

a narrow class of claims give rise to a valid sufficiency challenge.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc). A

conviction rests on insufficient evidence if the defendant was identified as the

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perpetrator solely based on common items of clothing or general physical

characteristics. See Commonwealth v. Crews, 260 A.2d 771, 771–72 (Pa.

1970) (overturning conviction where only evidence tying appellant to crime

was description of perpetrator’s complexion and gold-colored sweater).

However, clothing and physical characteristics can be used in tandem with

other circumstances to validly establish the identity of a perpetrator. See

Orr, 38 A.3d at 874–75 (finding combination of circumstantial factors

sufficient to identify appellant as perpetrator). In the presence of additional

evidentiary circumstances, “any indefiniteness and uncertainty in the

identification testimony goes to its weight.” Id. at 874 (citation omitted).

Ahner contends there was insufficient evidence to identify him as the

perpetrator beyond a reasonable doubt because the victims’ descriptions were

too generalized to identify anyone in particular as the perpetrator without

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further corroborating evidence.8 Though his argument is cognizable as a

sufficiency claim, Ahner is due no relief.9 Id.

The Commonwealth presented the following evidence at trial: (1) Seip’s

description of the intruder as wearing dark clothing covering his face except

for his eyes and holding a revolver, to whom she turned over approximately

$200, N.T. Trial, 9/25/17, at 42–46; (2) Smith’s description of the intruder as

an unknown individual wearing a dark beanie and bandana on his head, a dark

hooded sweatshirt, dark jeans, white and black gloves on his hands, and

carrying a revolver, id. at 90–95; (3) Seip’s testimony that she “immediately

followed [the intruder] out the door” watched him turn onto Centre Street,

and saw the police were already there, id. at 49-50; (4) Officer Caraballo’s

testimony that Seip directed him to Centre Street, where he apprehended

8 Ahner also offers the following to distinguish himself from the perpetrator of the crime: (1) the Commonwealth failed to confirm Ahner’s identity as the perpetrator through a “voice line-up;” (2) the victims failed to visually identify Ahner as the perpetrator; (3) Ahner’s proximity to the crime scene was insufficient to implicate him in the crimes; and (4) the Commonwealth offered no evidence to explain how Ahner knew of the existence of Seip’s safes or their contents. Brief of Appellant, at 35–43. None of these arguments is properly developed; therefore, all are waived. See Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006) (finding appellant’s claims waived under Pa.R.A.P. 2119(a) because of failure to develop meaningful argument with specific references to relevant case law).

9 Though most challenges to identity speak to the weight of the evidence, the trial court incorrectly contended all such challenges do so, and consequently, failed to evaluate the validity of Ahner’s sufficiency challenge. See Pa.R.A.P. 1925(a) Opinion, at 3; and Orr, 38 A.3d at 874–75.

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Ahner, the only individual on Centre Street, and found the stolen safes nearby,

N.T. Trial, 9/26/17, at 187–90; and (5) Detective Jones’ testimony detailing

Ahner’s clothing at the time of arrest as a black, hooded, zip-up jacket, white

batting gloves, gray slacks, black sneakers, a black beanie, and a bandana

around his neck, stating Ahner had $240 on his person, and attesting to

subsequently locating a revolver five feet from where Ahner was apprehended,

id., at 278–79, 303, 310.

Taken together, this evidence offers an unbroken chain linking Ahner to

the crimes committed. Notwithstanding the absence of either victim

identifying Ahner as the perpetrator at trial, our review of the entire record,

with due consideration accorded to the circumstantial evidence in the light

most favorable to the Commonwealth, confirms there was sufficient evidence

to sustain Ahner’s convictions. Compare Crews, supra (holding evidence

insufficient to convict appellant where only identification evidence linking

appellant to crime was description of perpetrator as black male with light

complexion wearing gold sweater in light of number of people who fit that

general physical description and common nature of gold sweater) with Orr,

38 A.3d at 874 (finding evidence sufficient where police stopped individual

matching victim’s description of perpetrator as having “a red beard, light

complexion, and wearing a camouflage-patterned hooded jacket and grey

pants” within five blocks of the crime scene and twenty-five minutes of crime,

in location consistent with where victim saw perpetrator flee after robbery).

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Next, Ahner avers the verdict rendered was against the weight of the

evidence. Specifically, he contends the Commonwealth failed to explain

Ahner’s familiarity with the specifics of the victims’ home, discrepancies

between the victims’ testimony and Ahner’s appearance, the delay in locating

the revolver, the absence of Seip’s bank envelope, or the location from which

the stolen safes were recovered in contrast to with where Ahner was

apprehended. Again, Ahner is due no relief.

When challenging the weight of the evidence, relief in the form of a new

trial may be granted only where the verdict shocks one’s sense of justice.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). Where the

trial court has ruled on a weight claim, our review is limited to determining

whether the trial court “palpably abused its discretion in ruling on the weight

claim.” Id. It is not our role, as a reviewing court, to reweigh the evidence

and substitute our judgment for that of the fact-finder. Commonwealth v.

Mitchell, 902 A.2d 430, 449 (Pa. 2006).

The trial court considered Ahner’s weight of the evidence claim in his

post-sentence motion and concluded it lacked merit. Pa.R.A.P 1925(a)

Opinion, 7/20/18, at 5–8. Here, the jury determined Ahner—who was

apprehended only feet from the scene of the crime, wearing distinctive

clothing disguising his appearance from head to toe—robbed Seip and Smith.

See Commonwealth v. Hargrave, 745 A.2d 20, 22 (Pa. Super. 2000) (“it is

within the province of the fact-finder to . . . believe all, part, or none of the

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evidence.”). It was purely within the jury’s discretion to find the

Commonwealth’s evidence credible and we will not disturb the verdict on

appeal. In concluding Ahner’s guilty verdicts failed to shock one’s sense of

justice, the trial court did not abuse its discretion.

Next, Ahner claims the jury convicted him despite expressing doubt as

to his guilt, arguing “the jury misinterpreted and misapplied the legal standard

of reasonable doubt.” Brief of Appellant, at 56. He is due no relief.

Ahner supports his argument by pointing to the jury’s questions asking

the court to “explain . . . the degree of circumstantial evidence that can

constitute guilt” and “how you measure reasonable doubt.” N.T. Trial,

9/27/17, at 453, 456. Ostensibly, according to Ahner, these questions

evinced the jury’s doubt as to his guilt.

This assertion, however, is not borne out by the facts or the law. Judge

Barrett responded to the jury’s questions by defining both circumstantial

evidence and reasonable doubt in substantially similar terms to those provided

by the Pennsylvania Suggested Standard Jury Instructions. See id. at 455–

58; see also Pa.S.S.J.I. (Crim.) §§ 7.01, 7.02A (providing, respectively,

standard jury instructions for reasonable doubt and circumstantial evidence).

The jury indicated it found Judge Barrett’s instructions helpful. N.T. Trial,

9/27/17, at 458 (“The Court: Help? The Foreman: Yes.”). Under the law, the

jury is presumed to follow the instructions of the court. Commonwealth v.

Spotz, 896 A.2d 1191, 1224 (Pa. 2006); see also Commonwealth v.

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O’Hannon, 723 A.2d 1193, 1196 (Pa. 1999) (“Absent evidence to the

contrary, the jury is presumed to have followed the trial court’s instructions.”).

Nothing in the trial court’s conduct served to jeopardize the proper legal

foundation upon which Ahner’s convictions rest.

In his final argument, Ahner contends the trial court failed to

appropriately consider mitigating factors when imposing consecutive

sentences—a claim that challenges the discretionary aspects of sentencing.

Commonwealth v. Rhoades, 8 A.3d 912, 918–19 (Pa. Super. 2010). Unlike

a challenge to the legality of sentence, there is no absolute right to appellate

review of the discretionary aspects of sentencing. Rather, a party who desires

to raise such matters must, inter alia, petition this Court for permission to

appeal and demonstrate that there is a substantial question as to whether the

sentence is appropriate. 42 Pa.C.S.A. § 9781(b). To fulfill this requirement,

the party seeking to appeal must “set forth in a separate section of [his or

her] brief a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspect of sentence.” Pa.R.A.P.

2119(f). The statement “shall immediately precede the argument on the

merits.” Id.

Instantly, Ahner has failed to comply with Rule 2119(f) by not including

any statement setting forth the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of his sentence. While the omission

of a Rule 2119(f) statement does not automatically preclude review of his

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claim, where, as here, the Commonwealth objects to its omission, “we may

not reach the merits of [the] claim[.]” Commonwealth v. Hudson, 820 A.2d

721 (Pa. Super. 2003), citing Commonwealth v. Farmer, 758 A.2d 173 (Pa.

Super. 2000). Accordingly, we find Ahner’s claim waived. Id.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/25/2019

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