Com. v. Shelley, E.

Superior Court of Pennsylvania

Com. v. Shelley, E.

DecidedJune 27, 2017

DocketCom. v. Shelley, E. No. 598 EDA 2016

StatusUnpublished

This text of Com. v. Shelley, E. (Com. v. Shelley, E.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Shelley, E., (Pa. Ct. App. 2017).

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Opinion

J-S18019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ERIC SHELLEY

Appellant No. 598 EDA 2016

Appeal from the Judgment of Sentence dated February 12, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010089-2014

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED JUNE 27, 2017

Appellant Eric Shelley appeals from the judgment of sentence entered

following his convictions for robbery, criminal conspiracy, carrying a firearm

without a license, carrying a firearm on public streets in Philadelphia, and

possession of a firearm by a person prohibited from doing so.1 We affirm.

The underlying facts which led to the criminal charges against

Appellant were stated in full by the trial court in its Pa.R.A.P. 1925(a)

opinion, and we need not restate them in full here. To summarize, Malik

Hassan, the complainant in this case, was walking to his home on 19th

Street around 1:00 a.m. on the morning of June 9, 2014. He encountered a

____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. §§ 3701, 903, 6106, 6108, and 6105, respectively. J-S18019-17

group of approximately six men, including Appellant, near the corner of

Shirley and Olive Streets. One of them said, “[T]hat’s your check. Go get

that,” at which point Appellant began to approach Mr. Hassan. Mr. Hassan

ran to the corner of Shirley Street and 19th Street, and saw Appellant at the

corner of Olive Street and 19th Street.2 Mr. Hassan ran to the top of his

front steps and opened his vestibule door. Mr. Hassan waited for ten to

fifteen seconds, until he saw Appellant emerge from the corner, holding a

black and silver handgun.3 Appellant and Mr. Hassan looked at each other

for a second, and then Mr. Hassan ran inside and shut the door, but

continued to watch Appellant through the peephole. Appellant crossed 19th

Street, put the gun in his waistband, and passed by Mr. Hassan’s residence

on the other side of the street. Appellant then returned down Appellant’s

side of the street and passed Mr. Hassan’s home a second time, saying

“Where did he go? Did you see where the boul go?” 4 Appellant again had his

gun drawn.

____________________________________________ 2 Olive Street, Shirley Street, and 19th Street form a triangle. Appellant’s emergence at the corner of Olive and 19th Streets indicates that he traversed the full block of Olive Street while Mr. Hassan ran down the block of Shirley Street. See Trial Ct. Op. at 2. 3 They were 25 feet apart at this time. See N.T., 12/8/15, at 54. 4 We understand “the boul” to be a slang reference to Mr. Hassan. When Appellant made his statement, he was just outside of Mr. Hassan’s home, about five feet from where Mr. Hassan was standing. See N.T., 12/8/15, at 57. Mr. Hassan testified that there were no other pedestrians in the area. Id.

-2- J-S18019-17

Mr. Hassan called the police, who apprehended Appellant. Mr. Hassan

then identified Appellant. Police also apprehended another man who had

been in the group seen by Mr. Hassan, and they ultimately retrieved a gun

from that man. Mr. Hassan then identified that gun as the one used by

Appellant. See Trial Ct. Op., 9/15/16, at 2-7; N.T. 12/8/15, at 38-57.

Appellant was convicted by a jury on December 10, 2015.5 On

February 12, 2016, Appellant was sentenced to an aggregate of four to ten

years’ incarceration followed by five years’ of probation. Appellant timely

appealed, presenting the following issues for our review:

I. Whether the evidence was sufficient to sustain the verdict on the robbery charge?

II. Whether the evidence was sufficient to sustain the verdict on the conspiracy charge?

III. Whether the court erred in not granting Appellant’s motion for judgment of [acquittal]?

Appellant’s Brief at 3.6

____________________________________________ 5 Appellant was convicted for the crime of unlawful possession of a firearm following a bench trial on that same date. See Trial Ct. Op. at 1. 6 Although Appellant did not raise before the trial court his argument that the evidence was insufficient to support his conviction for conspiracy, we will address the issue, as the trial court, while noting waiver, thoroughly addressed the issue in its opinion, the Commonwealth does not argue that the issue is waived, and the record is sufficient for our review. See generally Commonwealth v. Laboy, 936 A.2d 1058, 1058-60 (Pa. 2007) (per curiam) (declining to find waiver of sufficiency argument that was only generally stated in the 1925(b) statement, where trial court addressed the sufficiency of the evidence in its 1925(a) opinion, and the specific sufficiency (Footnote Continued Next Page)

-3- J-S18019-17

We review a challenge to the sufficiency of the evidence in accordance

with the following:

A claim challenging the sufficiency of the evidence presents a question of law. We must determine whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. We must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017).

Appellant argues that his convictions were based on mere conjecture.

See Appellant’s Brief at 10-11. According to Appellant, when he and Mr.

Hassan reached 19th Street, Appellant put his gun away and did not demand

property from or threaten Mr. Hassan. And, despite watching Mr. Hassan

enter his home, Appellant passed by his residence twice, asking aloud

“Where did he go?” Appellant argues that these actions do not make out the

elements of robbery, but rather indicate that “[A]ppellant wanted others to

believe he was looking for the complainant much more than he actually

wanted to engage the complainant in any way.” Id. at 11. Appellant also

claims that the evidence is not sufficient to prove conspiracy, because “there

was no evidence presented that [A]ppellant was acting with anyone else at

any time during the events at issue.” Id.

_______________________ (Footnote Continued) arguments raised on appeal were fully amenable to review by the reviewing court).

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A person is guilty of robbery if, “in the course of committing a theft,”

he “threatens another with or intentionally puts him in fear of immediate

serious bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii). “A conviction for robbery

does not require proof of a completed theft.” Commonwealth v. Robinson,

936 A.2d 107, 110 (Pa. Super. 2007), appeal denied, 948 A.2d 804 (Pa.

2008). Rather, the statute defines “in the course of committing a theft” to

include an act occurring “in an attempt to commit theft or in flight after the

attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2); see Robinson, 936

A.2d at 110. Nor does a conviction for robbery require explicit verbal threats

or actual serious bodily injury, particularly where the defendant brandished a

firearm:

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