Com. v. Kiger, J.

• Court: Superior Court of Pennsylvania
• Decided: July 16, 2019
• Docket: 1374 MDA 2018
• Status: Unpublished

Opinion

J -S22028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JOSEPHINE K. KIGER

Appellant : No. 1374 MDA 2018 Appeal from the Judgment of Sentence Entered April 18, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005626-2016

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 16, 2019

Appellant, Josephine K. Kiger, appeals from the April 18, 2018 Judgment

of Sentence entered in the Dauphin County Court of Common Pleas following

her conviction of Robbery and Conspiracy to Commit Robbery.' She

challenges the sufficiency of evidence in support of her convictions. After

careful review, we affirm.

We glean the following factual and procedural history from the certified

record. Appellant and Jon Paul Young ("the Victim") had a romantic

relationship from July to early -September 2016, during which the Victim moved in with Appellant. After the relationship ended and the Victim moved

out of Appellant's house, Appellant and the Victim agreed that he owed her

' 18 Pa.C.S. § 3701(a)(1)(ii) and 18 Pa.C.S. § 903, respectively.

Retired Senior Judge assigned to the Superior Court. J -S22028-19

approximately $400 for expenses. Because Appellant did not receive the

money the Victim owed her, Appellant texted the Victim, threatening to take

him to small claims court.

On September 9, 2016, Appellant invited the Victim to her house. Once

he arrived, Appellant invited the Victim to her kitchen for coffee. While in the

kitchen, Appellant told the Victim that she was going to do something to him

so that he never messes with another woman again. Appellant then yelled

"Now," and two of Appellant's friends emerged from Appellant's basement;

one friend was holding a wooden baseball bat.

Appellant then directed the Victim to place his arms in the air and one

friend stood directly in front of the Victim with the bat, while the other friend

removed a cellphone, wallet, approximately $184 in cash, car keys, and a

vape box from the Victim's pockets.

A trial commenced on February 14, 2018, after which the jury found

Appellant guilty of Robbery and Conspiracy to Commit a Robbery. On April

18, 2018, the court sentenced Appellant to one and one-half to three years of

imprisonment, followed by five years of probation.

After the dismissal of her Post -Sentence Motion, Appellant timely appealed. Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following question for our review: "Did the Commonwealth fail to present evidence sufficient to sustain a verdict of guilty

with respect to [Robbery] and [Conspiracy to Commit Robbery]." Appellant's

-2 J -S22028-19

Br. at 6. In her brief, Appellant narrows the issue by arguing only that the

Commonwealth presented insufficient evidence to support her conviction as

an accomplice to the robbery and as a co-conspirator.

"A claim challenging the sufficiency of the evidence is a question of law."

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). "Our standard

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

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017). In reviewing a sufficiency

challenge, we determine "whether the evidence at trial, and all reasonable

inferences derived therefrom, when viewed in the light most favorable to the

Commonwealth as verdict winner, are sufficient to establish all elements of

the offense beyond a reasonable doubt." Commonwealth v. May, 887 A.2d

750, 753 (Pa. 2005) (citation omitted).

"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." Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017).

"In conducting this review, the appellate court may not weigh the evidence

and substitute its judgment for the fact -finder." Id.

Robbery

Appellant argues that the Commonwealth failed to prove that she was

an accomplice to the robbery because she was not an active participant. She

asserts that the Commonwealth presented no evidence "to suggest Appellant

-3 J -S22028-19

in any way had knowledge of what might occur at her house on September 9,

2016." Appellant's Br. at 12. She contends that the evidence simply demonstrated that she was "merely present at the scene and associated with

the perpetrators[,]" and therefore sufficient evidence does not support her

Robbery conviction. Id. We disagree.

A person is guilty of Robbery if "in the course of committing a theft, [s]he . . . threatens another with or intentionally puts him in fear of immediate

serious bodily injury[.]" 18 Pa.C.S. § 3701(a)(1)(ii).

A defendant may be guilty of a crime even if she does not directly commit the crime. Under the theory of accomplice liability, an accomplice is

legally accountable for the conduct of another person involved in committing

a crime. 18 Pa.C.S. § 306(b)(3). In particular, a defendant is an accomplice

to another person if the defendant "aids . . . such other person in planning or

committing [the crime.]" 18 Pa.C.S. § 306(c).

Turning to the facts of this case, as an initial matter, there is no dispute

that Appellant's friends committed a robbery because one friend of Appellant

held a baseball bat while standing in front of the Victim and the other friend

emptied the Victim's pockets, stealing a cellphone, wallet, approximately $184

in cash, car keys, and a vape box. The issue is whether Appellant aided her

friends and thus, was an accomplice to the robbery.

The evidence demonstrated that Appellant invited the Victim to her

house. While Appellant and the Victim stood in the kitchen, Appellant

-4 J -S22028-19

threatened the Victim by telling him that Appellant "is going to do something

to him so that he never messes with another woman again." Appellant then

called her friends to the kitchen, shouting "Now." When her friends came into

the kitchen, Appellant told the Victim to place his arms in the air. One friend

then stood in front of the Victim with a bat while the other friend stole the Victim's personal items from his pockets. In light of Appellant's threat, her

calling in her friends, and her command that the Victim place his arms in the

air, the jury had sufficient evidence to infer that Appellant aided her friends

and thus, was an accomplice to the robbery. Accordingly, Appellant is not

entitled to relief on this claim.

Conspiracy to Commit Robbery Appellant argues that sufficient evidence does not support her

Conspiracy to Commit Robbery conviction. She again contends that the

evidence simply demonstrated that she was "merely present at the scene and

associated with the perpetrators." Appellant's Br. at 12. We disagree.

A defendant is guilty of conspiracy with other persons to commit a crime

if with the intent of promoting or facilitating its commission, the defendant

"(1) agrees with such other . . . persons that they or one or more of them will

engage in conduct which constitutes such crime . . . ." 18 Pa.C.S. § 903(a).

As discussed above, Appellant invited the Victim to her house, threatened him and then called her friends to rob the Victim. Appellant also

told the Victim to place his hands in the air while one friend stood in front of

-5 J -S22028-19

the Victim with a baseball bat and her other friend robbed the Victim. It is

from these facts that the jury could reasonably infer that Appellant entered

into an agreement with her friends to commit a robbery. Accordingly, Appellant is not entitled to relief on this claim.

Judgment of Sentence affirmed.

Judgment Entered.

J seph D. Seletyn, Prothonotary

Date: 07/16/2019

-6