Com. v. Kannah, B.

• Court: Superior Court of Pennsylvania
• Decided: January 28, 2026
• Docket: 2269 EDA 2024
• Status: Unpublished
• Author: Ford Elliott

Opinion

J-A20044-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BACHIR KANNAH : : Appellant : No. 2269 EDA 2024

Appeal from the Judgment of Sentence Entered June 10, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005234-2022

BEFORE: MURRAY, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 28, 2026

Appellant, Bachir Kannah, appeals the judgment of sentence imposed

by the Court of Common Pleas of Delaware County after a jury found him

guilty of robbery.1 He challenges: (1) the sufficiency of the evidence; (2) the

denial of his objection to the trial court’s answer to a jury question; (3) the

denial of his motion in limine requesting a jury instruction permitting an

adverse inference from the Commonwealth’s failure to preserve body camera

footage of a police officer’s telephone conversation with the victim; (4) the

weight of the evidence; (5) the discretionary aspects of his sentence; and (6)

the amount of restitution awarded. Upon review, we affirm.

The trial court has summarized the facts in this case as follows: ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3701(a)(1)(ii). J-A20044-25

[A]t the time of the incident, the [victim, Mariah Matthews,] was a college student. She live[d] in Baltimore but was going to college in the Phoenixville, Chester County area. In October of 2022, she had a pair of sneakers that she was trying to sell. They were special Nike Trooper, Travis Scott reversed size 10.5 sneakers. The [v]ictim advertised the sneakers on the “OfferUp App[]” for $800. [Appellant] contacted the [v]ictim through the [a]pp[] and messaged her [that] he was willing to purchase the sneakers for the asking price. The [v]ictim and [Appellant] began texting each other through the [a]pp. [Appellant] eventually gave the [v]ictim his cell phone number and they started texting back and forth in regular text messages. The text messages through the [a]pp[] and from their personal cell phones were admitted into evidence and published to the jury.

On October 9, 2022, [Appellant] and the victim arranged a meeting in Sharon Hill, Delaware County[,] to complete the transaction. The location [Appellant] selected was a couple blocks from where he lives. During the meeting [Appellant] inspected the sneakers and then spent a fair amount of time on YouTube viewing videos that instructed what to look for to determine if the sneakers are authentic versus counterfeit. The [v]ictim had an extended look at [Appellant] while he was viewing [the] YouTube videos. The [v]ictim testified that eventually [Appellant] pulled out a gun, pointed it at her, then picked up the sneakers[,] and ran away. She also testified that the sneakers were authentic.

William Shute, a retired FBI agent, was qualified as an expert in cell phone forensics. He testified that [Appellant’s] phone was in the area of the crime scene at the time the crime was committed. [Appellant] did not testify.

Trial Court Opinion, 11/6/24, 1-2 (section break added).

In addition, trial testimony established that the victim arrived in the area

of the planned sale at “around 11:30, 12 o’clock.” N.T. Trial, 4/17/24, 83.

Following the robbery, the victim resumed texting Appellant. See id. at 47,

53-54, 102-04. In an exchange of messages, she angrily called him names

and asserted that the sneakers “are fake.” Id. at 53-54. During cross-

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examination, the victim confirmed that the shoes were authentic and that she

was lying in the text messages about the shoes being fake because she was

angry at that time. See id. at 112; see also id. at 113-14 (additional re-

direct testimony confirming that the victim was not actually conceding that

the stolen sneakers were “fake shoes” and that the sneakers were actually

“real”).

Following the robbery, the victim began the drive home to Maryland.

See N.T. Trial, 4/17/24, 35. On the way, she called 911 to report the robbery

about an hour after it happened. See id. at 35, 57-58, 100. After the 911

call, she received a phone call from a police officer while she was still driving

home. See id. at 59. She gave that officer an account of the robbery during

their phone conversation. See id. at 105-06.

On October 11, 2022, the victim returned to Pennsylvania, gave a

statement to the Sharon Hill Police Department, which the police made an

audio record of, and identified Appellant in a photographic array. See N.T.

Trial, 4/17/24, 35-36, 59, 107-10, 115-21, 192-93. She brought with her

images from an Instagram account with a username that was the same as a

Cash App account associated with the phone number that she used to send

text messages to Appellant. See id. at 36-38, 59. She also identified

Appellant in photographs on that Instagram account. See id. at 37, 193-94.

On October 12, 2022, the police executed a search warrant at the home

of Appellant’s stepfather in Sharon Hill, which was listed with the Pennsylvania

Department of Transportation as an address for Appellant. See N.T. Trial,

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4/17/24, 164, 173, 195. Right inside the door to the residence, the police

recovered a firearm magazine and a diploma for Appellant from a suitcase that

was near a pile of shoe boxes that included a Nike shoebox that corresponded

with the stolen sneakers. See id. at 164, 169-71, 206-07, 209-10. The police

did not recover a firearm. See id. at 183. The police subsequently arrested

Appellant at a friend’s house in Darby borough, early in the morning on

November 10, 2022. See id. at 212-13.

On November 8, 2023, Appellant filed a motion to compel discovery

which included a request for a police body camera recording of Sharon Hill

Police Officer Ruben Pagan Rodriguez’s October 9, 2022 phone conversation

with the victim. See Motion to Compel Discovery, 11/8/23, ¶¶ 3-5. In an

incident report attached to the motion, Officer Pagan Rodriguez noted that he

conducted the phone call with the victim and included a summary of the

account that the victim gave him during their conversation. See Incident

Report, 10/9/22, 2-3 (attached as Exhibit A to Motion to Compel Discovery,

11/8/23). In the same incident report, Detective Vincent Procopio stated that

he was contacted by Officer Pagan Rodriguez and that “Officer Rodriguez

obtained [a subsequently described] statement [from the victim] with his

department issued body camera recording.” Id. at 4.

The trial court presided over a hearing on the discovery motion on

December 19, 2023. Detective Procopio, the person responsible for

maintaining his police department’s body cameras, testified that there was no

body camera footage preserved from Officer Pagan Rodriguez on or about the

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time of the officer’s phone conversation with the victim. See N.T. Discovery

Hearing, 12/19/23, 19-21. He asserted that he was unable to confirm whether

Officer Pagan Rodriguez’s body camera was turned on at the time of the phone

conversation because the police “only ha[d] 30 days to go back and view [an]

officer’s body camera footage.” Id. at 21-22. Detective Procopio explained

on cross-examination that, even if an audio recording had been made of the

phone conversation, he would not have believed it necessary to preserve the

recording because the victim came to the police station three days after the

phone conversation and gave an audio recorded in-person statement. See

id. at 23. Officer Pagan Rodriguez testified that he did not believe his body

camera was activated at the time of his phone conversation with the victim.

See id. at 27. The court held its ruling on the motion under advisement. See

Trial Court Docket Entry, 12/19/23.

In an omnibus pre-trial motion filed on April 1, 2024, Appellant

requested, inter alia, a jury instruction for “the failure to produce [a]

document or other tangible evidence at trial,” as provided in Suggested

Standard Criminal Jury Instruction Section 3.21B, with respect to the absence

of a body camera recording of Officer Pagan Rodriguez’s October 9, 2022

phone conversation with the victim.2 Omnibus Pre-trial Motion, 4/1/24, ¶¶

26-35.

____________________________________________

2 Detective Procopio confirmed in his trial testimony that no body camera footage was preserved with respect to the Officer Pagan Rodriguez’s call with (Footnote Continued Next Page)

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Appellant proceeded to a jury trial on the above-referenced robbery

charge and additional charges for carrying a firearm without a license and

possessing an instrument of crime, 3 and the Commonwealth requested a

bifurcated non-jury trial on a separate charge for possession of a firearm by

a prohibited person.4 See N.T. Pre-Trial Conference, 4/15/24, 6-7, 9-11. The

Commonwealth presented testimony from the victim, Agent Shute, Detective

Procopio, and Detective Sean Johnson, who executed the search warrant at

Appellant’s stepfather’s home. Appellant presented testimony from Officer

Pagan Rodriguez. The parties stipulated at trial that one of the Instagram

photographs that the victim showed to the police was a photograph of

the victim. See N.T. Trial, 4/17/24, 189 (“There was nothing actually preserved from Officer Rodriguez.”); id. at 191 (Detective Procopio when asked whether he was aware of whether Officer Pagan Rodriguez turned his body camera on for the call with the victim: “Yeah, I cannot recall. I can’t sit here today, two years ago because it wasn’t preserved then say what the phone conversation consisted of. But was it activated? Yes.”); id. (“It was not preserved. It was not saved. It is -- does not exist for this investigation.”). He also confirmed that a reference in an affidavit of probable cause concerning Officer Pagan Rodriguez taking a “body cam statement” from the victim was not accurate. See id. at 247 (“There was no in person [interview] with the victim [with] a body camera statement taken.”); see also id. at 253 (Detective Procopio confirming that body camera footage of an in- person victim statement would get preserved). He agreed that there was a body camera recording at the time of the October 9, 2022 phone call with the victim but that it was not preserved. See id. at 255 (“Q. But today you’re testifying that no, he did turn it on. You just didn’t preserve it, right? A. Correct. There was nothing preserved.”).

3 18 Pa.C.S. §§ 6106 and 907, respectively.

4 18 Pa.C.S. § 6105.

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Appellant and came from his Instagram account. See N.T. Trial, 4/17/24, 70-

71. The parties also stipulated at trial that Appellant had used, since 2020,

the cellular telephone number that the victim used to text him. See id. at

198.

At trial, the Commonwealth played recordings of three telephone

conversations which Appellant made during his pre-trial detainment. See N.T.

Trial, 4/17/24, 217-18. Appellant’s counsel paraphrased the contents of the

recorded calls, during cross-examination, as follows: (1) “You hear my client

go and some girl was trying to sell me fake shoes. So I took the shoes to see

if they were original;” (2) “The second phone conversation is the one where

there’s something [to] the effect said like they, you know, they locked me up

with no gun. I didn’t have any gun on, right? … there’s also something in

there about like, you know, I left it at the house;” and (3) “there’s a prison

phone call with my client and a girl … She’s basically asking like what’s going

on and we hear a snippet of that phone [call,] and he basically says like the

only good thing is, you know, I don’t have a gun on me. I’m trying to get it

to regular robbery, not armed robbery or something like that[.]” Id. at 234-

37.

Prior to the closing arguments of the parties and the trial court’s

instructions to the jury, the trial court revisited Appellant’s earlier request for

an instruction concerning the “failure to produce [a] document or other

tangible evidence at trial.” See N.T. Trial, 4/18/24, 5. The court rejected the

request as follows: “My decision is that this is not appropriate here. There

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was a satisfactory explanation for the body cam, where the body cam went.

It was satisfactorily explained[,] and I will not be reading that. You can argue

as you argue, but I will not be reading that.” Id. Appellant’s counsel argued

that the explanation was not satisfactory because the failure to preserve the

body camera footage “contravene[d] the[ police department’s] body camera

policy.” Id. at 6. The court rejected that argument: “It has been explained

over and over and over, and we know what happened. He body cammed a

phone call with the victim. It was given over, it wasn’t preserved. It is gone,

we don’t have it. It has been explained. There is no instruction on it.” Id. at

7.

During the jury’s deliberation, it asked the trial court a question: “Can

a victim feel threatened or have a fear of bodily harm or injury without a

weapon?” N.T. Trial, 4/18/24, 99. The court decided to answer, “Yes,” to the

question and advise the jury that they were “free to go back and reread” an

instruction that they had with them. Id. Appellant’s counsel noted an

objection:

You have my objection for the record. I think it’s improper to answer the question formally one way or the other. I would just ask them to reread the instructions to the elements of robbery as charged by the Commonwealth. So, I would be objecting … I just ask that they be instructed to reread the instruction.

Id. at 99-100. The court implicitly denied the objection by answering the

jury’s question as it originally stated it would. See id. at 100 (“I did receive

your question. … The answer is [‘]yes[’]. You are free to go back and reread

the instruction which you have with you.”).

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The jury found Appellant guilty of robbery and not guilty of carrying a

firearm without a license or of possessing an instrument of crime. See Jury

Verdict, 4/18/24, 1-2; N.T. Trial, 4/18/24, 101-03. The court then found

Appellant not guilty of possession of a firearm by a prohibited person. See

Bench Verdict, 4/18/24, 1; N.T. Trial, 4/18/24, 105. Sentencing was deferred

for a later date with the possibility for global sentencing along with an

additional pending criminal matter for Appellant. See N.T. Trial, 4/18/24,

106. The court ordered a pre-sentence investigation (PSI) report for the

deferred hearing. Id. at 107.

On June 10, 2024, the trial court sentenced Appellant to seven to

eighteen years’ imprisonment with credit for time served between November

10, 2022, and June 10, 2024, an order to stay away from the victim, and an

order of restitution of $800.00 to the victim.5 See Order (sentencing),

5 The minimum imprisonment term was at the top of the standard range recommended by the Sentencing Guidelines: 72 to 84 months’ imprisonment, plus or minus twelve months for aggravating or mitigating circumstances. See 204 Pa. Code § 303.15 (offense listing, applying an offense gravity score of ten for robbery involving the threatening of serious bodily injury in violation of 18 Pa.C.S. § 3701(a)(1)(ii)) (7th ed., amend. 6); 204 Pa. Code § 303.16(a) (basic sentencing matrix, recommending a standard range minimum imprisonment term of 72 to 84 months’ imprisonment, plus or minus twelve months for an offense with a gravity score of ten where the defendant has a prior record score of “RFEL”) (7th ed., amend. 6); N.T. Sentencing Hearing, 6/10/24, 4 (noting the applicable guideline range and that Appellant had a prior record score of “RFEL” based on prior adjudications for rape and burglary); id. at 8-9 (the parties agreed to the application of the Guidelines’ basic sentencing matrix over the application of a deadly weapon enhancement matrix).

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6/10/24, 1; N.T. Sentencing Hearing, 6/10/24, 13-14. We note that the

Commonwealth requested the ordered amount of restitution because it “was

the agreed-upon price for the shoes” which Appellant took from the victim.

N.T. Sentencing Hearing, 6/10/24, 4.

With respect to Appellant’s instant challenge to the discretionary aspects

of his sentence, we reproduce the following remarks that the Commonwealth

made at sentencing concerning an arrest of Appellant in a separate

Philadelphia matter that did not result in a conviction:

[THE PROSECUTOR]: … And in this case, as I pointed out, I looked at the Philadelphia docket. He was incarcerated and in the phone calls that were played at the jury trial, they had to be stopped because [it] would’ve [] forced a mistrial if I kept going because of the one he talks about how he had just gotten home for a robbery in Philadelphia. At a preliminary hearing in the address, excuse me, the dates are outlined in the memorandum. That case had to be withdrawn. I don’t know what the circumstances were. I’m not asking that the [c]ourt hold any alleged facts against him, but what do we have? He couldn’t go a couple of months without being in jail for being accused of robbery until he’s picked up for actually committing another robbery that he’s convicted of. He doesn’t learn his lesson whether he is completely innocent and mistaken identity, whatever for the first one, he couldn’t go a couple months without committing another robbery for a pair of shoes. The record for this case, [Appellant’s] history, are full of aggravating factors and merits an[] aggravated sentence because he’s just going to keep committing serious crimes and nothing and no one is going to stop him.

N.T. Sentencing Hearing, 6/10/24, 6-7. 6

6 The Commonwealth had requested a longer imprisonment term, within the

aggravated range recommended by the Guidelines: eight to sixteen years’ imprisonment. See N.T. Sentencing Hearing, 6/10/24, 9. Appellant’s counsel (Footnote Continued Next Page)

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In a timely-filed post-sentence motion, Appellant challenged: (1) the

discretionary aspects of his sentence; (2) the weight of the evidence; and (3)

the amount of the restitution awarded. See Post-Sentence Motion, 6/20/24,

¶¶ 4-6. With respect to the sentencing claim, he alleged that the maximum

imprisonment term was “not supported by aggravating factors” and the

Commonwealth’s reference to his Philadelphia robbery charge, which did not

result in a conviction, was improper. See id. at ¶ 4. As for the weight claim,

he noted that the evidence “was so inherently unreliable and contradictory

that a new trial [wa]s warranted in the interest of justice,” the victim “gave

multiple inconsistent statements to police,” he was found not guilty of the

weapons charges, and “there was no testimony that [he] threatened the

[victim] in any way.” Id. at ¶ 5. In support of the restitution claim, he

asserted that “there was a genuine dispute as to the authenticity and value of

the shoes,” based on a related statement from the victim that the shoes were

“fake,” there were “no receipts or documentation presented at trial

establishing the actual value of the sneakers,” and that the evidence did not

support the amount of restitution awarded. Id. at ¶ 6. On July 31, 2024, the

trial court denied the post-sentence motion after a hearing at which the court

reconsidered Appellant’s challenge to the discretionary aspects of his

requested a term “somewhere in the standard range,” and suggested an imprisonment term of six and one-half to thirteen years. Id. at 12.

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maximum imprisonment term. See Order (post-sentence motion denial),

7/31/24, 1.

Appellant timely appealed. See Notice of Appeal, 8/27/24, 1. For

purposes of our review, Appellant and the trial court have both satisfied their

obligations under Pennsylvania Rule of Appellate Procedure 1925. See Order

(Rule 1925(b)), 8/27/24, 1; Petition for Extension to File a Rule 1925(b)

Statement, 9/17/24, 1-3; Order (granting extension of time for Rule 1925(b)

statement), 9/17/24, 1; Rule 1925(b) Statement, 10/7/24, 1-2; Trial Court

Opinion, 11/6/24, 1-13.

Appellant presents the following questions for our review:

1. Whether the evidence was insufficient to establish Appellant’s guilt for the offense of [r]obbery, 18 Pa.C.S. § 3701(a)(1)(ii), where the Commonwealth failed to prove beyond a reasonable doubt that Appellant threatened serious bodily injury or intentionally put the complainant in fear of immediate serious bodily injury and the jury clearly did not find that Appellant possessed a weapon?

2. Whether the trial court erred when[,] over Appellant’s objection[,] it responded affirmatively to the jury’s question inquiring whether a victim could feel threatened or have fear of bodily harm or injury without a weapon, when the robbery charge required a finding of a threat of serious bodily injury and not simply bodily harm or injury?

3. Whether the trial court erred when it denied Appellant’s motion in limine requesting a jury instruction that the Commonwealth failed to preserve [body camera] footage when the complainant first spoke to a police officer about the alleged robbery[,] which statement evidenced inconsistencies and this case rested entirely on the credibility of the complainant?

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4. Whether the verdict was against the weight of the evidence where the case rested entirely on the credibility of the complainant, who was shown to be inconsistent, and the jury did not find that Appellant possessed a weapon?

5. Whether the trial court erred at sentencing when it considered Appellant’s arrest for robbery in Philadelphia?

6. Whether the trial court erred at sentencing when it ordered restitution in the amount of $800 when that amount was speculative and unsupported by the record?

Appellant’s Brief, 4-5 (issues reordered; answers of the trial court omitted).

We have reordered the issues presented to address Appellant’s

challenge to the sufficiency of the evidence first because a grant of relief on

that issue would warrant discharge on the pertinent crime and render the

remaining issues moot. See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.

Super. 2013) (en banc) (“Because a successful sufficiency of the evidence

claim warrants discharge on the pertinent crime, must address this issue

first.”).

In his sufficiency challenge, Appellant asserts that “[t]he

Commonwealth failed to show[,] with proof beyond a reasonable doubt[,] that

[he] threatened [the victim] with serious bodily injury or placed her in fear of

imminent serious bodily injury.” Appellant’s Brief, 38. He agrees that “[a]

fact[-]finder is entitled to infer that a victim was in mortal fear when a

defendant visibly brandished a firearm,” but asserts that the evidence failed

to demonstrate his possession of a firearm. Id. at 39 (citing Commonwealth

v. Alford, 880 A.2d 666, 676 (Pa. Super. 2017)). He reasons, for purposes

of the instant claim, that his not guilty verdicts on his weapons offenses and

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the jury’s question, “Can a victim feel threatened or have a fear of bodily harm

or injury without a weapon?,” constituted findings of facts by the jury that

should render the evidence insufficient for robbery. See Appellant’s Brief, 39-

40 (“This evidence would be sufficient but for the fact that the jury did not

believe that [he] had a firearm.”). Appellant’s claim must fail where it is

contrary to our binding precedent concerning inconsistent verdicts in the

context of sufficiency review.

“Evidentiary sufficiency is a question of law and, therefore, our standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Muhammad, 335 A.3d 1047, 1051 (Pa. 2025) (citation omitted). We employ

the following well-settled standard of review when analyzing claims

challenging the sufficiency of the evidence:

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 proof 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 the 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.

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Commonwealth v. Marberger, 344 A.3d 403, 410-11 (Pa. Super. 2025)

(citation omitted).

For the robbery conviction at issue, the Commonwealth had the burden

of proving, beyond a reasonable doubt, that, “in the course of committing a

theft,” Appellant “threatened [the victim] with or intentionally put[ the victim]

in fear of immediate serious bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii).

“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.

§ 2301. “Bodily injury” is defined as “[i]mpairment of physical condition or

substantial pain.” Id. As acknowledged by Appellant, the commission of a

theft completed at gunpoint to the victim is sufficient to prove robbery under

section 3701(a)(1)(ii). See Commonwealth v. Bowen, 612 A.2d 512, 514

(Pa. Super. 1992) (“the robbery here was found to be committed at gunpoint

and as such would seem squarely to fall within the definition of section

3701(a)(1)(ii) as a first[-]degree felony”).

Appellant’s sufficiency claim, relying on an interpretation that his

acquittal on weapons offenses was a finding that he was not in possession of

a deadly weapon for purposes of a sufficiency claim, is contrary to law. A

verdict of acquittal inconsistent with a verdict of guilty does not directly

support Appellant’s claim that there was a lack of evidence to sustain his

robbery conviction because “an acquittal cannot be interpreted as a specific

finding in relation to some of the evidence, and that even where two verdicts

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are logically inconsistent, such inconsistency alone cannot be grounds for a

new trial or reversal.”7 Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa.

2012). Rather, Appellant, alleging the lack of sufficient evidence, still bears

the burden to engage in review, applying our sufficiency standard of review

to the record at issue, to show that an element of his robbery conviction went

unproven. See Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa.

2014) (noting “the United States Supreme Court has recognized that a court’s

review of the evidentiary sufficiency of a particular conviction is separate from

its review of inconsistent verdicts, as sufficiency review entails an assessment

of whether the evidence was sufficient for the jury to convict a defendant of a

particular offense and is ‘independent of the jury’s determination that

evidence on another count was insufficient’”) (quoting United States v.

Powell, 469 U.S. 57, 67 (1984)).

7 An exception to the inconsistent verdicts rule exists, such that a conviction

cannot stand on sufficiency grounds when there has been an acquittal on a predicate offense. See Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005). In Magliocco, our Supreme Court determined that a conviction for ethnic intimidation could not withstand review when a jury had acquitted the appellant for terroristic threats, where the commission of the offense of terroristic threats was specifically enumerated as an element of the crime of ethnic intimidation. See id. at 493; but see Commonwealth v. Moore, 103 A.3d 1240, 1247-48 (Pa. 2014) (noting that Magliocco was not so much an “exception” to the inconsistent verdict jurisprudence, but a “largely idiosyncratic” sufficiency challenge “that, critically [did] not entail jury inferences and so [was] not in conflict with the principle permitting inconsistent verdicts or its corollary that factual findings may not be inferred from a jury’s acquittal”). Here, Appellant’s weapon offenses were not predicate offenses for robbery.

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Our Courts have long understood that “a fact[-]finder may render

inconsistent verdicts,” and “[a] jury’s verdict in a criminal case will not be set

aside merely because it appears to be inconsistent with another verdict of the

jurors[, s]o long as the challenged verdict is supported by the evidence.”

Commonwealth v. Taylor, 471 A.2d 1228, 1231 (Pa. Super. 1984) (internal

citations omitted); see, e.g., Miller, supra, 35 A.3d at 1209 (“the fact that

the inconsistency [in the verdict] may be the result of lenity, coupled with the

Government’s inability to invoke review, suggests that inconsistent verdicts

should not be reviewable.”).

To the extent that Appellant challenges the sufficiency of the evidence,

he fails to conduct meaningful sufficiency review to allege any absence of

evidence necessary to support his robbery conviction. The victim, in this case,

plainly testified that Appellant robbed her at gunpoint to steal an expensive

pair of limited-edition sneakers that she was trying to sell him. See N.T. Trial,

4/17/24, 33 (the victim: “It was like a few minutes went past and then he

pulled out a gun and said that he was going to take the shoes. … He aimed it

[the gun] at me.”). Viewing this evidence, in the light most favorable to the

Commonwealth, as the verdict winner, it was sufficient to prove that Appellant

threatened the victim with or intentionally put her in fear of immediate serious

bodily injury while Appellant committed a theft of the shoes that she was

trying to sell him. See Bowen, supra, 612 A.2d at 514. Appellant’s

sufficiency claim thus entitles him to no relief.

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In his reordered second issue, Appellant asserts that the trial court erred

when it denied his objection to the court’s affirmative answer to the jury’s

question, “Can a victim feel threatened or have a fear of bodily harm or injury

without a weapon?” See Appellant’s Brief, 27-31. He argues that the court’s

answer was “an inaccurate statement of the law” because, for purposes of his

robbery charge, the Commonwealth needed to prove that he threatened

another with or intentionally put another in fear of immediate serious bodily

injury, and believes the court’s affirmative answer incorrectly gave the jury

the impression that it could convict him of robbery even if it only found that

he threatened the victim with or intentionally placed her in fear of bodily

injury. See id. at 30.

When Appellant’s counsel objected to the court’s proposed affirmative

answer, he stated no specific legal grounds for objecting to the court’s answer:

You have my objection for the record. I think it’s improper to answer the question formally one way or the other. I would just ask them to reread the instructions to the elements of robbery as charged by the Commonwealth. So, I would be objecting … I just ask that they be instructed to reread the instruction.

Id. at 99-100. This undefined objection did not raise the proposed error that

Appellant suggests, i.e., that the court’s affirmative answer improperly

lowered the evidentiary threshold upon which the jury could find him guilty of

robbery. Where Appellant failed to object to the court’s answer on the specific

basis that he now argues on appeal, we conclude that Appellant waived his

instant challenge to the court’s answer to the jury. See Commonwealth v.

Hitcho, 123 A.3d 731, 756 (Pa. 2015) (holding Hitcho waived his challenge

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to jury instruction where he made no specific objection or exception to the

charge or the trial court’s ruling respecting the points for charge);

Commonwealth v. Baker, 963 A.2d 495, 506 (Pa. Super. 2008) (holding

Baker failed to preserve challenge to jury instruction when she did not assert

a specific objection or exception to the instruction that was given);

Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the

charge may be assigned as error unless specific objections are made thereto

before the jury retires to deliberate. All such objections shall be made beyond

the hearing of the jury.”) (emphasis added); see also Pa.R.A.P. 302(a)

(providing, “Issues not raised in the trial court are waived and cannot be raised

for the first time on appeal”).8

8 Even if the instant appellate argument concerning the court’s answer had been preserved in a specific objection lodged below, we would not be persuaded by Appellant’s argument. The question posed by the jury did not specifically ask the court to clarify the minimum evidence necessary to reach a guilty verdict on the robbery charge, as Appellant suggests. The question related to the potential for a victim’s subjective fear of bodily injury in the event of a robbery committed without the brandishing of a weapon. As our caselaw provides that there can be sufficient evidence for robbery in the absence of evidence that a defendant brandished a weapon, we cannot conclude that the trial court’s answer to the jury’s question was a misstatement of law. See Commonwealth v. Bragg, 133 A.3d 328, 332 (Pa. Super. 2016) (finding evidence sufficient for robbery under 18 Pa.C.S. § 3701(a)(1)(ii) where Bragg entered a bank, disguised himself with sunglasses and a baseball cap, wore surgical gloves to conceal his fingerprints, banged his fists on the bank’s counter, and demanded that the bank’s teller place only large bills in his bag); id. (“While Appellant asserts he cannot be guilty of first- degree robbery as he did not brandish a weapon or make a specific verbal threat, this Court has never held that either action is required to sustain a conviction under Section 3701(a)(1)(ii).”).

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In his third reordered issue, Appellant asserts that the trial court erred

by denying his request for a missing evidence jury instruction with respect to

the absent body camera footage from Officer Pagan Rodriguez of his telephone

conversation with the victim on the day of the robbery. See Appellant’s Brief,

32-37. He reasons that he was entitled to the instruction “[b]ecause the

evidence was solely within the control of the Commonwealth, [] the evidence

was material to the issue of whether a firearm was used, [] it would not have

been cumulative [of other evidence presented], and the Commonwealth had

no satisfactory reason for why [the body camera footage] was not preserved.”

Id. at 32.

He alleges, inter alia, that the missing footage “would have uniquely

shown that within hours of the alleged robbery, [the victim] told [Officer]

Pagan Rodriguez that[,] as she stepped out of her car [on] the day she was

to sell the shoes to [Appellant], he pulled out a black gun and pointed it at her

forehead.” Appellant’s Brief, 35 (emphasis omitted). Appellant thus suggests

that he would have used the missing evidence to impeach the victim’s trial

testimony that he pulled out the gun and pointed it at her ribcage after they

had been talking and watching YouTube videos for twenty minutes. See id.

at 35. In the absence of the body camera footage, he alleges the trial court

erred by not granting his request for a “failure to produce [a] document or

other tangible evidence at trial” charge, pursuant to Pennsylvania Suggested

Standard Criminal Jury Instruction 3.21B. See id. at 32-33.

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“[O]ur standard of review when considering the denial of jury

instructions is one of deference – an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa. 2009).

[A] jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear[,] or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the [defendant] was prejudiced by that refusal.

Commonwealth v. Becker, 192 A.3d 106, 118 (Pa. Super. 2018) (citation

omitted).

The jury instruction Appellant requested, Pennsylvania Suggested

Standard Criminal Jury Instruction 3.21B, states:

1. There is a question about weight, if any, you should give to the failure of [the Commonwealth] to produce an item of potential evidence at this trial[: body camera footage of Officer Pagan Rodriguez’s telephone conversation with the victim].

2. If three factors are present, and there is no satisfactory explanation for a party’s failure to produce an item, the jury is allowed to draw a common-sense inference that the item would have been evidence unfavorable to that party. The three necessary factors are:

First, that the item is available to that party and not to the other;

Second, that it appears the item contains or shows special information material to the issue; and

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Third, that the item would not be merely cumulative evidence.

3. Therefore, if you find these three factors present and there is no satisfactory explanation for the [Commonwealth’s] failure to produce [the body camera footage], at this trial, you may infer, if you choose to do so, that it would have been evidence unfavorable to [the Commonwealth].

Pa. SSJI (Crim), § 3.21B (4th ed. 2024) (formatted consistent with Appellant’s

request for the instruction; emphasis in original). 9

A missing evidence instruction is appropriate “[w]here evidence which

would properly be part of a case is within the control of the party in whose

interest it would naturally be to produce it, and, without satisfactory

explanation he fails to do so.” Clark v. Philadelphia College of

Osteopathic Medicine, 693 A.2d 202, 204 (Pa. Super. 1997) (citation

The trial court rejected Appellant’s request for the instruction because

it viewed that there was a satisfactory explanation for the absence of the body

camera footage: “My decision is that this is not appropriate here. There was

a satisfactory explanation for the body cam, where the body cam went. It

was satisfactorily explained[,] and I will not be reading that. You can argue

as you argue, but I will not be reading that.” N.T. Trial, 4/18/24, 5. Appellant

9 We note that “[t]he Suggested Standard Jury Instructions themselves are

not binding and do not alter the discretion afforded trial judges in crafting jury instructions; rather, as their title suggests, the instructions are guides only.” Commonwealth v. Simpson, 66 A.3d 254, 274 n. 24 (Pa. 2013) (citation and quotation marks omitted).

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argues that the court was incorrect in making that determination:

“Respectfully, nowhere in this record is there a satisfactory explanation for

why the affiant, a detective, did not preserve a recording of an alleged robbery

victim made within hours of it happening.” Appellant’s Brief, 37.

In its opinion, the trial court expands on its reasoning for denying the

instruction request. It finds that the footage was not preserved due to inaction

on the part of the police, rather than some bad faith act of evidence

destruction, and that Appellant failed to demonstrate that a recording of the

body camera footage would have been material in the context of the trial:

[The failure to preserve the body camera footage] was fully explained during trial. Detective Procopio testified that Sharon Hill has an older system [for storing body camera footage]. If footage is not pulled within 30 days, it is written over and lost forever.

In this case, Officer Rodriguez made a call to the complainant after he received a call from 911 dispatch about an alleged robbery. The interview was over the telephone and[,] although Officer Rodriguez’s [body camera] was activated, there is no guarantee both sides of the telephone conversation were recorded. Detective Procopio explained that[,] at the time[,] he did not think of preserving the footage because[, on] the following day[,] the complainant was coming to the police station to give a formal recorded statement.

Officer Rodriguez did file a written report memorializing the conversation. Defense counsel used perceived inconsistencies in that report during cross examination at trial.

***

Here, [Appellant] has not shown how the body[ ]cam[era] footage contained “special information” that was not contained in Officer Rodriguez’s written report memorializing the telephone conversation. Furthermore, the [body camera] footage is

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cumulative of the written report. [Appellant] merely speculates that the [body camera footage] “evidenced inconsistencies” beyond those contained in the written report. [The m]issing [e]vidence instruction was simply not appropriate on these facts.

Trial Court Opinion, 11/6/24, 4-5 (record citation omitted).

Based on our review, we are persuaded that the trial court did not abuse

its discretion in denying the missing evidence instruction. Even assuming

arguendo that the footage would have captured both sides of the officer’s

telephone conversation with the victim (and the record gives no indication of

that), Appellant failed to demonstrate that the content of the body camera

footage would not have been cumulative of the content of the incident report

form in which Officer Pagan Rodriguez contemporaneously summarized the

victim’s account of the robbery on the day of the robbery. See Incident Report

Form, 10/9/22, 2-3, attached as Exhibit A to Motion to Compel Discovery,

11/8/23. Therefore, the record fully supports the trial court’s conclusion that,

at best, the missing body camera footage – its absence was explained at trial

– would have been cumulative.

In his brief, Appellant alleges that the unpreserved body camera footage

“would have uniquely shown that[,] within hours of the alleged robbery, [the

victim] told [Officer] Pagan Rodriguez that[,] as she stepped out of her car

[on] the day she was to sell the shoes to [him], he pulled out a black gun and

pointed it at her forehead.” Appellant’s Brief, 35 (emphasis added). Our

thorough review of the record, however, reflects that Appellant’s cross-

examination of Detective Procopio on the content of the incident report form

summarizing the victim’s phone conversation with Officer Pagan Rodriguez put

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the same facts about the phone conversation before the jury that Appellant

suggests would have been “uniquely shown” by the missing body camera

footage. Id.; see also N.T. 4/17/24, 243-44 (“Q. That says [the victim]

stated she stepped out of the car with the shoes, [Appellant] pulled a gun and

put it to her forehead and told her to give him the shoes and proceeded to run

away with it.”). As the record reflects that the missing footage would have

been cumulative of the same information contained in the incident report, and

Appellant presented that information to the jury through cross-examination,

we are unable to conclude that the trial court abused its discretion by denying

a missing evidence instruction.

In his fourth issue, Appellant asserts that the trial court abused its

discretion when it denied his post-sentence challenge to the weight of the

evidence. See Appellant’s Brief, 41-45. He concludes, as he argued in

support of his sufficiency challenge, that the jury’s acquittal on his weapons

charges should have been accepted as a factual finding that he did not possess

a gun for purposes of his robbery charge. See id. at 43. He then argues that

the jury only reached its robbery verdict based on misinformation by the trial

court arising from the court’s answer to the jury on whether a victim could

feel “threatened or have a fear of bodily harm or injury without a weapon.”

See id. at 44. Amid the inconsistent verdicts, Appellant asserts that the trial

court “did not weigh the evidence” and “consider the inconsistencies of the

complainant’s testimony.” Id. He then points out the inconsistency addressed

in his claim concerning the lack of a missing evidence instruction: that Officer

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Pagan Rodriguez’s second-hand account of the victim’s initial report had

Appellant pulling out a gun immediately after the victim exited her car and

pointing it at her forehead whereas the victim’s trial testimony had him pulling

out the gun after he watched YouTube videos for an extended period of time

and pointing the gun at her rib cage. See id. He then concludes by asserting

that there was a lack of evidence to corroborate his guilt. See id. at 44-45.

Our standard of review as to the denial of a weight claim by a trial court

is to examine “the exercise of discretion, not of the underlying question of

whether the verdict is against the weight of the evidence.” Commonwealth

v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting Commonwealth v.

Widmer, 744 A.2d 745, 753 (Pa. 2000)) (emphasis omitted). In a post-

sentence motion, a weight claim “is addressed to the discretion of the trial

court.” Widmer, 744 A.2d at 751. “In order for a defendant to prevail on a

challenge to the weight of the evidence, ‘the evidence must be so tenuous,

vague[,] and uncertain that the verdict shocks the conscience of the court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015) (quoting

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)). A trial

court’s denial of a motion “based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa.

2008).

“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.” Clay, 64 A.3d at 1055. This Court must limit review to “whether

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the trial court abused its discretion by reaching a manifestly unreasonable

judgment, misapplying the law, or basing its decision on partiality, prejudice,

bias, or ill-will.” Id. at 1056.

The instant weight claim is principally based on Appellant’s conclusion

that the jury’s inconsistent verdicts can be interpreted as a finding that he

never possessed a firearm. As we explained above in response to Appellant’s

sufficiency challenge, “an acquittal cannot be interpreted as a specific finding”

as Appellant asserts herein. Miller, supra, 35 A.3d at 1213. “[I]nconsistent

verdicts are permissible so long as the evidence is sufficient to support the

conviction, while ‘[a] weight of the evidence claim concedes that the evidence

is sufficient to sustain the verdict.’” Commonwealth v. Carrasquillo, ---

A.3d ----, 2025 WL 2959625, *4 (Pa. Super. 2025) (quoting Commonwealth

v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013)). As Appellant’s assertions about

the inconsistency of the verdicts implicate the sufficiency of the evidence,

rather than its weight, it does not advance the instant claim. See

Carrasquillo, --- A.3d ----, 2025 WL 2959625, at *4 (referring to argument

in support of a challenge based on inconsistent verdicts framed as a challenge

to the weight of the evidence as “incoherent” and holding that it must be

reviewed as a challenge to the sufficiency of the evidence).

The remaining portions of Appellant’s argument implicate the weight of

the evidence because they address the credibility of the victim, but we find

them to be waived. Appellant’s direct challenge to the victim’s credibility

identifies the stated conflicts between the victim’s trial testimony and her

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earlier account to the police: that she earlier reported that Appellant

immediately pulled out a gun when they first met and said that he pointed the

gun at her face whereas her trial testimony was that Appellant pulled the gun

out after watching YouTube videos in her presence for at least twenty minutes

and then pointed the gun at her rib cage. See Appellant’s Brief, 44. To the

extent that Appellant asserts that the victim was incredible due to a lack of

corroborating evidence, he points out that there were no “independent

witnesses,” no surveillance footage from the surrounding properties, and no

recovered gun. Id. These portions of the claim are waived as Appellant failed

to raise them with specificity in his post-sentence weight claim and his Rule

1925(b) statement.

A challenge to the weight of the evidence “must be preserved either in

a post-sentence motion, by a written motion before sentencing, or orally prior

to sentencing.” Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012); see also Pa.R.Crim.P. 607(A)(1)-(3). Otherwise, a weight claim will

be waived. See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.

Super. 2014) (failure to properly preserve a weight of the evidence claim will

result in waiver, even if the trial court addresses the issue in its Rule 1925(a)

opinion). A weight claim must be raised with specificity both in a post-

sentence motion and a Rule 1925(b) statement in order to for it to be

preserved for our review. See Commonwealth v. Hitner, 910 A.2d 721,

733 n.17 (Pa. Super. 2006) (finding a weight claim preserved where the

appellant “raised his specific weight of the evidence claims in his post-

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sentence motion and court-ordered [Rule] 1925(b) statement”) (citations

omitted; emphasis added).

In his post-sentence weight claim, Appellant asserted:

[T]he verdict was against the weight of the evidence, such that the evidence presented was so inherently unreliable and contradictory that a new trial is warranted in the interest of justice. The sole witness who testified that a robbery occurred was the [c]omplainant, who gave multiple inconsistent statements to police. [Appellant] was found not guilty of the weapons offenses in this case, including [p]ossessing an [i]nstrument of [c]rime, and there was no testimony that [he] otherwise threatened the [c]omplainant in any way.

Post-sentence Motion, 6/20/24, ¶ 5. In his Rule 1925(b) statement, Appellant

identified his weight claim as follows: “The verdict as to robbery was against

the weight of the evidence where the case rested entirely on the credibility of

the complainant, who was shown to be inconsistent, and the jury did not find

that Defendant/Appellant possessed a weapon.” Rule 1925(b) Statement,

10/7/24, ¶ 3.

Appellant’s post-sentence weight claim only generally referred to the

victim as having “multiple inconsistent statements to police,” and his Rule

1925(b) statement broadly stated that the victim “was shown to be

inconsistent,” without either presentation of a weight claim referring to the

specific inconsistencies addressed by his appellate weight claim. Post-

sentence Motion, 6/20/24, ¶ 5; Rule 1925(b) Statement, 10/7/24, ¶ 3.

Neither the post-sentence weight claim nor the identified weight claim in the

Rule 1925(b) specified that the victim’s credibility was undermined by a lack

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of corroborating evidence. The weight claim in the post-sentence motion only

referred to the victim as “[t]he sole witness” and the Rule 1925(b) weight

claim acknowledged that the robbery verdict “rested entirely on the credibility

of the complainant.” Post-sentence Motion, 6/20/24, ¶ 5; Rule 1925(b)

Statement, 10/7/24, ¶ 3.

In his appellate weight claim, Appellant notes that the trial court only

“addressed this issue very briefly in its opinion.” Appellant’s Brief, 43. The

trial court’s brief response to the weight claim in its Rule 1925(a) opinion

appears to have been a function of Appellant’s failure to state his weight claim

with specificity in his post-sentence motion and his Rule 1925(b) statement.

See Trial Court Opinion, 11/6/24, 10 (“In reviewing the record in this case,

the court determines that the verdict was fully supported by the evidence.

Additionally, as noted above, inconsistent verdicts provide no grounds for

relief.”). Rather than providing clarity for the trial court to address the

substance of his articulated appellate challenges to the victim’s credibility,

Appellant’s post-sentence motion and Rule 1925(b) concise statement left the

trial court to guess as to which evidentiary inconsistencies Appellant wished

to raise. Consequently, we conclude that Appellant waived his appellate

weight claim. See Commonwealth v. Schofield, 312 A.3d 921, 927 (Pa.

Super. 2024) (“[A] concise statement which is too vague to allow the court to

identify the issues raised on appeal is the functional equivalent of no Concise

Statement at all.”) (citation omitted), appeal denied, 327 A.3d 184 (Pa.

2024).

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In his fifth claim, Appellant challenges the discretionary aspects of his

sentence. In particular, he alleges that the trial court erred by improperly

considering, in violation of our Supreme Court’s decision in Commonwealth

v. Berry, 323 A.3d 641, 654 (Pa. 2024), an arrest he had for an unrelated

robbery charge out of Philadelphia which did not result in a conviction. See

Appellant’s Brief, 46-49.

“[A] claim [that] a sentencing court relied on impermissible factors in

imposing a sentence presents a challenge to the discretionary aspects of a

sentence.” Commonwealth v. Davis, 341 A.3d 808, 812 (Pa. Super. 2025).

“The right to appellate review of the discretionary aspects of a sentence is not

absolute[] and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) (en

banc). To invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence, an appellant must satisfy a four-part test: (1) the

appellant preserved the issue by raising it at the time of sentencing or in a

post-sentence motion; (2) the appellant filed a timely notice of appeal; (3)

the appellant set forth in his brief a concise statement of reasons relied upon

for allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure

2119(f); and (4) the appellant raises a substantial question for review. See

Commonwealth v. Banks, 198 A.3d 391, 401 (Pa. Super. 2018).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa. Super. 2003). “A substantial question exists only when

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the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015) (en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.

Super. 2011)). In deciding if a substantial question exists, “we may not look

beyond the statement of questions presented and the concise prefatory [Rule]

2119(f) statement.” Commonwealth v. Scullin, 607 A.2d 750, 752 (Pa.

Super. 1992).

Here, Appellant timely filed his notice of appeal, preserved his instant

sentencing claim by including it in his post-sentence motion, and included a

Rule 2119(f) statement in his appellate brief. See Notice of Appeal, 8/27/24,

1; Post-sentence Motion, 6/20/24, ¶ 4 (“The Court made no mention of the

aggravating factors that it took into consideration during sentencing, and the

factors that the Commonwealth highlighted were either improper (such as a

Philadelphia robbery charge which was ultimately withdrawn) or already

factored into the sentencing guidelines”); Appellant’s Brief, 25-26. The instant

claim also raises a substantial question as it asserts that the sentencing court

relied on an impermissible sentencing factor. See Banks, supra, 198 A.3d

at 401 (“It is well settled that a claim that the sentencing court relied on

impermissible factors in sentencing raises a substantial question.”) (citation

and internal quotation marks omitted). Accordingly, we will address the

substantive merits of Appellant’s claim.

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Our standard of review for addressing a discretionary sentencing claim

is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, 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.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (citation

Additionally, our review is confined by statutory mandates. See

Johnson, 125 A.3d at 826-27. Section 9781(c) of Pennsylvania Sentencing

Code provides:

The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). Here, Appellant was sentenced at the top of the

standard range recommended by the guidelines and there is no dispute that

the guidelines were properly applied. Section 9871(c)(2) is pertinent to our

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review. Specifically, we may only vacate and remand for resentencing, here,

if the sentencing court’s application of a guidelines term was “clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2).

Further, in reviewing the record, we consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. 9781(d).

Appellant asserts that the trial court erred at sentencing “when it

considered” his separate arrest for robbery in an unrelated criminal matter

where the unrelated charge did not result in a conviction. Appellant’s Brief,

46. In Commonwealth v. Berry, 323 A.3d 641, 643, 654-56 (Pa. 2024),

our Supreme Court held that past arrests that did not lead to convictions

cannot be used as a sentencing factor and, on that ground, vacated Berry’s

sentence.10 In Berry, the defendant had a “prior record score” of zero, the

sentencing court “stated that Berry’s arrest record (which the court

10 While not relevant in the instant case, we note that, in Berry, the Supreme

Court did not explicitly reach the issue of whether a sentencing court may consider “a prior arrest where the facts underlying the arrest are established by a preponderance of the evidence.” 323 A.3d at 656.

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characterized as ‘previous other contacts’ with the criminal legal system)

essentially negated Berry’s absence of a prior criminal record,” and the court

imposed an imprisonment term “that deviated significantly upward from the

standard sentencing range recommended by the sentencing guidelines.” Id.

at 643. The abuse of discretion by the sentencing court in Berry was the

court’s “misappli[cation of] the law by predicating the sentencing in part upon

Berry’s arrest record.” Id.; see also id. at 651 (“The court then nullified the

prior record score by considering, and significantly relying upon, Berry’s prior

arrests.”).

The defendant in Berry argued before this Court that the sentencing

court in his case abused its discretion by crafting a sentence that was based

at least in part upon his arrest record. 323 A.3d at 646. Appellant similarly

argues that the sentencing court in his case violated Berry by improperly

considering his unrelated arrest that did not result in a conviction, but he fails

to demonstrate that the court actually based its sentence in part upon his

unrelated arrest. He points out that the Commonwealth emphasized his

Philadelphia arrest during its arguments for an aggravated-range sentence in

a pre-sentence memorandum and at both his sentencing hearing and a

hearing for reconsideration of sentence. See Appellant’s Brief, 46-47 (quoting

Commonwealth Sentencing Memorandum, 6/7/24, 2; N.T. Sentencing

Hearing, 6/10/24, 6-7; N.T. Reconsideration of Sentence Hearing, 7/22/24,

8). He failed though to demonstrate any support in the record showing that

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the sentencing court considered his prior unrelated arrest and based his

sentence at least in part on the prior unrelated arrest.

At sentencing, the trial court immediately imposed its sentence without

offering a statement of reasons for the imposed standard-range guideline

imprisonment term. See N.T. Sentencing Hearing, 6/10/24, 13 (“THE COURT:

All right. Mr. Kannah, on Count Number One, robbery a felony of the first

degree[,] I sent[ence] you to a minimum of seven years [and] to a maximum

of 18 years at a [s]tate [c]orrectional [i]nstitute.”). In its order denying

reconsideration of Appellant’s sentence, the court noted that reasons were:

“1) at age 20, defendant is already a [RFEL]; 2) poor candidate for

[r]ehabilitation; and 3) danger to society.” Order (denial of sentence

reconsideration), 7/31/24, 1. In its opinion for this appeal, the sentencing

court notes that “[a] sentence that falls within the standard guideline range is

presumed to be reasonable” and, “[b]ecause the sentence did not exceed the

guidelines and the court considered all relevant information, [Appellant’s]

sentence was not an abuse of discretion.” Trial Court Opinion, 11/6/24, 12-

13.

Upon reviewing this record, we are unable to find any support for the

notion that the sentencing court improperly considered Appellant’s unrelated

arrest and based the imposed sentence, even in part, on that factor. On this

basis, we conclude that Appellant has failed to demonstrate an abuse of

discretion. See Commonwealth v. Campbell, --- A.3d ---, 2025 WL

2950169, *8 (Pa. Super., filed Oct. 20, 2025) (where the sentencing court

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may have relied on an improper factor there is no abuse of discretion where

the sentence is reasonable based upon consideration of other proper factors).

Alternatively, Appellant argues that a remand for resentencing is

appropriate to remedy a lack of statement of reasons for the sentence stated

by the sentencing court that would elucidate whether the court considered his

unrelated arrest:

Based thereon, it is impossible to know whether the court took the arrest into consideration when imposing the sentence. Certainly, it could have considered it when concluding that [Appellant] is a poor candidate for rehabilitation and a danger to society. The court’s [Rule 1925(a) o]pinion provided no clarity on the issue. The appropriate remedy is to remand for resentencing.

Appellant’s Brief, 49 (record and caselaw citation omitted). Even assuming

arguendo that an argument that the sentencing court failed to properly state

reasons for its sentence were properly before us, we would not grant the relief

requested because this Court has rejected similar arguments alleging that

sentencing courts have failed to offer statements of reasons for imprisonment

terms within the standard range recommended by the Sentencing Guidelines.

See Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015)

(“Here, each of Leatherby’s sentences was within or below the standard range

of the sentencing guidelines … Thus, the trial court was not required to provide

a statement of reasoning and this claim does not raise a substantial

question.”); Commonwealth v. Szarko, 616 A.2d 26, 27 (Pa. Super. 1992)

(court was not required to provide a contemporaneous written statement for

a deviation from the guidelines where it imposed a sentence within the

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standard range of the guidelines); see also Commonwealth v. Ventura,

975 A.2d 1128, 1135 (Pa. Super. 2009) (noting that a standard guideline

range sentence “is presumptively where a defendant should be sentenced”).

In his last issue, Appellants presents a second challenge to the

discretionary aspects of his sentence, alleging that the trial court erred by

imposing restitution in the amount of $800.00 because “that amount was

speculative and unsupported by the record.” Appellant’s Brief 50-52. See

Commonwealth v. Solomon, 247 A.3d 1163, 1167 (Pa. Super. 2021) (en

banc) (“issues concerning [an] amount of restitution implicate the

discretionary aspects of a defendant’s sentence”). As a preliminary matter,

we note that this claim is reviewable because Appellant timely filed his notice

of appeal, he preserved the instant claim in his post-sentence motion, see

Post-sentence Motion, 6/20/24, ¶ 6, he included this claim in his Rule 2119(f)

statement, see Appellant’s Brief, 26, and the claim raises a substantial

question for our review. See Solomon, 247 A.3d at 1167-68 (stating

substantial question raised by claim asserting that a restitution award was

“speculative and excessive” where it was based on the initial cost of stolen

coins despite hearing evidence that the coins’ market value had fallen by

almost $30,000.00 lower than their initial cost); Commonwealth v. Pappas,

845 A.2d 829, 842 (Pa. Super. 2004) (stating substantial question was

presented by the contention that there was insufficient evidence of the value

of the stolen property to support the restitution award). We thus may proceed

with substantive review of this claim. As with any other discretionary

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sentencing claim, our standard of review is focused on whether the sentencing

court’s denial of the instant claim was an abuse of discretion. See Solomon,

247 A.3d at 1168.

Appellant asserts that the sentencing court erred by imposing $800.00

in restitution based on the agreed-upon sales price for the stolen sneakers in

the absence of the presentation of receipts, other documentation, or

testimony establishing the value of the shoes at the sentencing hearing. See

Appellant’s Brief, 50, 52. He also argues that the restitution value of the

stolen sneakers was speculative because the authenticity of the sneakers was

challenged at trial. See id. at 52. He argues that this matter must be

remanded for a hearing to determine the stolen sneakers’ value. See id. at

50, 52.

The trial court recommends that we reject this claim because the

amount of restitution was based on the trial evidence as to the value of the

sneakers:

[Appellant] argues the amount of restitution ordered by the court was speculative and excessive. This argument is without merit. The court’s order of restitution is supported by the record as the court accepted the evidence provided by the [v]ictim concerning the value of the sneakers. The [v]ictim advertised the sneakers on the “Offer Up App[]” for $800. [Appellant] contacted the [v]ictim and represented to her [that] he was willing to purchase the sneakers for the asking price. The court, as fact-finder, was free to choose to accept the evidence the [v]ictim provided in support of her estimates as to the value of the stolen sneakers. The [v]ictim’s loss was a direct result of the crime in this case, and the restitution amount is clearly supported by the record. Accordingly, the court did not abuse its discretion in determining $800 to be the proper amount of restitution.

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Trial Court Opinion, 11/6/24, 13.

In addition to all other sentencing options available to the trial court, it

“shall order the defendant to compensate the victim of his criminal conduct

for the damage or injury that [s]he sustained.” 42 Pa.C.S. § 9721(c).

Restitution is authorized whenever the “property of a victim has been stolen,

converted[,] or otherwise unlawfully obtained, or its value substantially

decreased as a direct result of the crime.” 18 Pa.C.S. § 1106(a)(1). In

determining the amount of restitution, the court must consider, “the extent of

the injury suffered by the victim, the victim’s request for restitution as

presented to the district attorney in accordance with paragraph (4) and such

other matters as it deems appropriate.” 18 Pa.C.S. § 1106(c)(2)(i). To

determine the correct amount of restitution, a “but-for” test is used—damages

which occur as a direct result of the crime are those which should have not

have occurred but for the defendant’s criminal conduct. See Commonwealth

v. Gerulis, 616 A.2d 686, 697 (Pa. Super. 1992). “An order of restitution is

a sentence, thus, the amount awarded is within the sound discretion of the

trial court and must be supported by the record.” Commonwealth v.

Biauce, 162 A.3d 1133, 1138 (Pa. Super. 2017) (cleaned up; citation

A restitution order that is speculative or excessive or is “not supported

by the record” is an abuse of a sentencing court’s discretion. Solomon, 247

A.3d at 1168. Conversely, if there is a “direct nexus” between the crime and

the award of restitution, and some evidentiary support for the amount, then

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there is no abuse of discretion, because restitution compensates for a loss

caused by a defendant’s criminal conduct. Id. at 1172.

Here, Appellant’s claim fails to appreciate that a court may base

restitution on the testimony of the victim as to the value of the stolen property.

For instance, in Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),

the defendant pleaded guilty to theft and related charges for stealing twenty-

two aluminum plates from a scrap yard and selling them to a third party. Id.

at 806. In that case, the court determined that the victim had $28,450.00 in

losses outstanding from the theft where a co-defendant already had a

restitution hearing and the amount of loss was based on the victim’s

testimony. Id. at 807. In that case, we held that the amount of restitution

was neither speculative nor excessive where it was based on the victim’s

testimony. Id. at 810 (“Prior to entry of the guilty plea, the trial court judge

clearly explained that the victim’s testimony, as to the value of the stolen

property, supported restitution in the amount at issue. In accepting the

victim’s testimony as credible, the court, determined, and Appellant

confirmed, that the loss by the victim was attributable to conduct on the part

of Appellant and co-defendant[.]”).

In this case, the sentencing court, which also presided at the jury trial,

was presented with evidence including the victim’s testimony that her offer

price for the stolen sneakers was $800.00 and that was the amount Appellant

agreed to pay her for the sneakers before he proceeded to rob her of the

shoes. See N.T. Trial, 4/17/24, 24-25, 32-33. Moreover, the court heard

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testimony from Detective Procopio that the victim told police that she “had

her own … shoe sales company.” Id. at 280. Based on the foregoing record,

we discern no merit to Appellant’s assertion that the restitution amount was

speculative. The trial court did not abuse its discretion when it based the

restitution amount on the trial testimony of the victim as to the bargained-for

price of the stolen shoes, set by the victim and evidently accepted by

Appellant, and where other trial evidence reflected that the victim was a

commercial seller of similar goods and would thus have a basis to know the

appropriate value of the sneakers in question. See, e.g., Commonwealth

v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999) (record supported amount

of restitution where Dohner was found guilty by jury of theft of money from a

chain restaurant that she worked at as an assistant manager, and the

Commonwealth offered testimony from a loss prevention director of the

restaurant chain, who calculated the amount that Dohner stole).

Our thorough review of the record reveals that there was sufficient

evidence to sustain Appellant’s robbery conviction, Appellant waived a

meritless challenge to the trial court’s answer to a jury question, the trial court

did not err in denying Appellant a missing evidence jury instruction, the

portions of Appellant’s challenge to the weight of the evidence, which did not

otherwise address the sufficiency of evidence, were waived, and that Appellant

failed to demonstrate an abuse of discretion with respect to the imposition of

his imprisonment term and the restitution amount. Accordingly, we affirm

Appellant’s June 10, 2024 judgment of sentence.

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Judgment of sentence affirmed.

Date: 1/28/2026

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