Com. v. Williams, R.

Opinion

J-S69014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RAYMOND WILLIAMS

Appellant No. 2819 EDA 2013

Appeal from the Judgment of Sentence October 2, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010221-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 12, 2014

Appellant, Raymond Williams, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions of aggravated assault, robbery, carrying firearms on

public streets, and possession of an instrument of crime.1 We affirm.

The trial court opinion sets forth the relevant facts and procedural

history of this case. Therefore, we have no need to restate them.

Appellant raises one issue for review:

WHETHER…THE TRIAL COURT ERRED WHEN IT FOUND [APPELLANT] GUILTY OF ROBBERY 18 PA.C.S.A. § 3701(A)(1)(II) WHEN THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO ESTABLISH APPELLANT’S GUILT

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a), 3701(a)(1)(ii), 6108, 907(a). J-S69014-14

BEYOND A REASONABLE DOUBT OF ROBBERY?

(Appellant’s Brief at 7).

Appellate review of a claim challenging the sufficiency of the evidence

is:

[W]hether 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 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 evidence actually received must be considered. Finally, the [finder] 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.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Charles J.

Cunningham, III, we conclude Appellant’s issue merits no relief. The trial

court opinion comprehensively discusses and properly disposes of the

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question presented. (See Trial Court Opinion, filed April 10, 2014, at 3-8)

(finding: sufficient evidence existed to support robbery conviction, where

Appellant approached Complainant, brandished gun, and demanded that

Complainant give his money to Appellant; although Complainant knew

Appellant and at first laughed at Appellant’s demand, Appellant then raised

gun to Complainant’s face; Complainant responded to threat by grabbing

Appellant’s neck to disarm Appellant; gun discharged during their fight;

Appellant bit Complainant three times on Complainant’s arm; Complainant’s

phone and money ended up on ground during fight; Appellant grabbed

Complainant’s money and phone from ground and fled; Complainant took

possession of gun; Appellant returned and re-engaged Complainant;

Complainant struck Appellant with gun handle; Appellant fled again;

Complainant went home and had his wife call police; when police arrived at

Complainant’s home, Complainant gave them Appellant’s gun and hat; later,

police obtained Appellant’s shirt; Appellant’s demand, with use of gun, for

Complainant’s money was attempt to take Complainant’s property by force

with gun, which gave rise to reasonable inference that Complainant was in

fear of immediate serious bodily injury, satisfying Section 3701(a)(1)(ii);

although Appellant was not charged with Section 3701(a)(1)(v), Appellant’s

removal of Complainant’s cash and phone from ground constituted

Appellant’s taking from Complainant’s person, which includes unlawful taking

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of Complainant’s property from his presence or control).2 The record

supports the court’s credibility determinations and decision. Accordingly, we

affirm on the basis of the trial court’s opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/12/2014

2 We note a correction to page 3 of the court’s opinion: counsel filed Appellant’s untimely post-sentence motion on October 16, 2013. We further reject Appellant’s hyper-technical application of grammar rules that led to Appellant’s mischaracterization of the court’s opinion.

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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA 1658 EDA 2013 v.

111/111111111111111111 III FILED 7138046441 APR 1 0 1014 OPINION Crlmin~1 Appeals unil First Judicial District of PA STATEMENT OF THE CASE

Defendant is appealing his conviction on the charge of Robbery pursuant to 18 Pa.C.S.A.

§ 370J(a)(J)(ii), and related charges. Defendant complains that the evidence presented at trial \"las

insufficient to prove his guilt beyond a reasonable doubt and that the verdict was against the

weight of the evidence. Defendant's complaints are without merit.

PROCEDURAL HISTORY

On August 10, 2012, Defendant was arrested and charged \"lith inter alia: Aggravated

Assault, Robbery, Firearms Not to be Carried Without a License, Theft by Unlawful Taking,

Receiving Stolen Property, Carrying Fireanns on Public Streets, Possession of an Instrument of

Crime, Terroristic Threats, Simple Assault, and ReCklessly Endangering another Person.! At the

conclusion of Defendant's bench trial on July 22, 2013, he was found guilty of Aggravated

Assault, Robbery, Carrying Fireanns on Public Streets and Possession of an Instrument of

Crime. He was fOlmd not guilty on the remaining charges. On October 2, 2013, he was

, 18 Pa.C.SA §§ 2702(a); 3701(a)(J)(ii); 6106(a)(1); 3921(a); 3925(a); 6108; 907(a); 2706(a)(1); 2701 (a) and 2705 respectively. Circulated 11/19/2014 04:31 PM

sentenced to a period of confinement in a state correctional facility of 5 to 15 years on the charge

of Aggravated Assault. He was also sentenced to concurrent periods of probation of 10 years on

the charge of Robbery, 5 years on the charge of Carrying Firearms on Public Streets and 5 years

on the charge of Possession of an Instrument of Crime. These periods of probation are

consecutive to his incarceration for Aggravated Assault. In sum, Defendant was sentenced to 5-

15 years confinement followed by 10 years of probation.

On October 7, 2013, Defendant timely filed the instant pro se appeal to the Superior

Court of Pennsylvania. On October 10,2013, Walter C. Chisolm, Esq. was appointed counsel to

represent Defendant for the purposes of his appeal. On October 16, 2013, Defendant, through

his counsel, filed an untimely Post-Sentence Motion challenging the sufficiency and weight of

the evidence presented at Defendant's trial. On November 4,2013, the Court filed and served on

Defendant an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,

directing Defendant to file and serve a Statement of Errors Complained of on Appeal within 21

days of the Court's Order. On November 18,2013, Defendant filed a Motion for Extension of

Time to file a Statement of Errors because the notes of testimony had not yet been transcribed.

On November 22, 2013, Defendant filed a Statement of Errors and also refiled his previous

Motion for Extension of Time. On November 27, 2013, the Court granted Defendant's Motion

for Extension of Time and directed him to file a Statement of Errors within 21 days after the

notes of testimony became available. The notes of testimony became available on December 6,

2013. Defendant has not subsequently filed a supplemental Statement ofEITors. In his Statement

of Errors filed on November 22, 2013, Defendant complains:

"12. The evidence was insufficient as a matter of law to establish the defendant's guilt beyond a reasonable doubt on the charge of robbery because there was no evidence that defendant ever physically took or removed property from the person of another by force. The evidence in this case appears to indicate that the alleged property of the complainant

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was not taken from the complainant's person, by force, but instead was allegedly taken from the ground Or sidewalk - apart from the complainant's body or person. Therefore, the strict element of 18 Pa.C.S. 3701 section (a)(1) have not been satisfied."

"13. A new trial should be awarded in the interest of justice because the verdict was against the weight of the evidence. Again, the evidence in this case appears to indicate that the alleged property of the complainant was not taken from the complainant's person, but instead was allegedly taken from the ground or sidewalk. Therefore, the strict elements of 18 Pa.C.S. 3701 section (a)(I) have not been satisfied."

WAIVER

The Pennsylvania Rules of Criminal Procedure (PaR.CLP.) at Rule 607(A) provides, in

pertinent part: "A claim that the verdict was against the weight of the evidence shall be raised

with the trial judge in a motion for a new trial: (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a post-sentence

motion." A challenge to the weight of the evidence will be deemed waived if not properly raised

pursuant to Pa. R. Cr. P. Rule 607(A). Commonwealth v. Buller, 1999 PA Super 58, 729 A.2d

1134,1140 (1999)

Defendant did not first challenge the weight of the evidence until filing a "Post Sentence

Motion" on October 17, 2013. This motion was untimely, however, because: (a) Defendant had

already filed his Notice of Appeal to the Superior Court on October 7, 2013, and (b)

Pa.R.Crim.P. Rule 720(a)(I) requires Post-Sentence Motions to be filed within ten days of the

imposition of sentence, and 14 days had passed since Defendant was sentenced on October 2,

2013. Because Defendant did not raise this issue in accordance with Rule 607(A), it is waived

for the purposes of appeal. The Court would further add, however, that Defendant's challenge to

the weight of the evidence is duplicative of his challenge to the sufficiency of the evidence and,

for the reasons explained in the discussion below, is meritless.

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EVIDENCE AT TRIAL

The complainant, Terrance Montague, testified that in the early morning of August 6,

2012, he was buying food at a store in the 300 block of North 52" Street in the City of

Philadelphia. At approximately I: 15 am he left the store and was approached by Defendant, who

was holding a goo at his side and covering his face with a shirt. Complainant testified that

Derendant told him to "give me all your f-----g money", but that Complainant knew Defendant

and laughed at his demand. When Complainant asked Defendant ifhe was "serious" Defendant

pointed his gun at his face. In response to this threat Complainant grabbed Defendant by the

neck and attempted to take the gun from him. Although the exact chronology is unclear, during

the struggle the following events occurred: (1) Defendant bit Complainant three times on the

ann, (2) the gun the two were fighting over somehow discharged, although neither man was hit,

(3) a phone and cash belonging to Complainant ended up on the ground, and (4) Complainant

yelled at bystanders to call the police. (N.T. 7/22/13 pgs. 14-19, 27, 30)

Complainant was eventually able to take to take possession of Defendant's gun, hat, and

the shirt he had over his face, at which point Defendant grabbed his money and phone from the

ground and fled. Shortly thereafter Defendant returned and attempted to reengage Complainant,

who then hit Defendant with the handle of the gon. Defendant again fled. (N.T. 7122/13 pgs. 18-

20)

Complainant, taking Defendant's gun, shirt and hat with him, travelled approximately

two blocks to his home. Before entering he noticed that there were police officers in the area.

Once inside Complainant also told his wife to call the police. Officers arrived at his home and

collected Defendant's gun and hat, returning later to collect the shirt. (N.T. 7/22/13 pgs. 20-21,

33)

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111at evening Complainant received treatment, including a tetanus shot, for the three bites

he received from Defendant. He testified at trial that he still feels numbness in his ann as a result

ofthe bites. (N.T. 7122113 pgs. 22-25)

Philadelphia Police Officer Reinaldo Dejesus testified that on August 6,2012 he was on

duty m the City of Philadelphia when he received a report of an anned robbery. Officer Dejesus

met the complainant at his home, who told him that he had been robbed in the 300 Block of 52 nd

Street and identified his assailant as a man named Raymond. Mr. Montague provided Officer

Dejesus with the gun he had taken from Defendant. Officer Dejesus later returned to Mr.

Montague's home to retrieve Defendant's shirt as well. (N.T. 7/22113 pgs. 39 M 4S)

DISCUSSION OF THE ISSUE RAISED

I. THERE WAS SUFFICIENT EVIDENCE TO PROVE BEVOND A REASONABLE

DOUBT THAT DEFENDANT WAS GUILTY OF ROBBERY.

Defendant states that there was insufficient evidence to establish guilt beyond a

reasonable doubt on the charge of robbery. This complaint is without merit.

A challenge to the sufficiency of the evidence is a question of law. Commonwealth v.

Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000) The test is "whether the evidence, and all

reasonable inferences deducible therefrom, vlewed ill the light most favorable to the

Comll1onwealt11 as verdictMwinner, are sufficient to establish all the elements of the offense

beyond a reasonable doubt." Commonwealth v. Davalos, 779 A.2d 1 I 90, 1 I 93 (2001) (citing

Commonwealth v. Hughes, 536 Pa. 355, 361, 639 A.2d 763, 766 (1994)) If the finder of fact

could have reasonably determined from the evidence that all of the necessary elements of the

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crime were established, then the evidence is deemed sufficient to support the verdict. [d. (citing

Commonwealth v. Wood, 432 PaBuper. 183, 199,637 A.2d 1335, 1343 (1994))

Defendant vvas convicted of robbery pursuant to 18 Pa.e.S.A. § 3701 (a)(1 )(ii), graded as 2 a felony of the first degree , which provides in part that a person commits robbery when in the

"course of committing a theft" he "threatens another with or intentionally puts him in fear of

immediate serious bodily injury." A theft occurs when one "unlawfully takes, or exercises

unlawful control over, movable property of another with intent to deprive him thereof." 18

Pa.C.S.A. § 3921(a). Section 3701(a)(2) of the robbery statute states that an act is in the "course

of committing a theft" if it occurs "in an attempt to commit theft or in flight after the attempt or

commission." In other words, it is not necessary that a defendant have successfully completed a

theft in order to commit robbery. See Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.

Super. 2007)

The phrase "serious bodily injury" is defined as "bodily 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." Commonwealth v. Kubis, 978 A.2d 391, 398

(Pa. Super. 2009) (ciling Commonwealth v. Hopkins, 747 A.2d 910,915 (Pa.Super.2000)) The

"threat" of serious bodily injury need not be verbal, and it is sufficiellt if the evidence shows that

the defendant took "aggressive actions that threatened the victim's safety'" Commonwealth v.

Hopkins, 747 A.2d 910, 914 (Pa.Super.2000) (internal citations omitted) The Superior Court

has said that in making Olis detennination the "proper focus is on the nature of the threat posed

by an assailant and whether he reasonably placed a victim in fear of' serious bodily injury. ld.

Importantly, the finder of fact is "entitled to infer that a victim was in mortal fear when a

defendant visibly brandished a firearm." Id. at 914-915

2 18 Pa.C.SA § 3701(b)(l)

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In the instant matter, the Commonwealth presented evidence in the form of testimony

from the complainant Terrance Montague that Defendant appeared before Complainant holding a

firearm and demanded his money. When asked if he was serious about this demand Defendant

pointed the gun at Complainant's face. (N.T, 7122/13 pgs. 16-17) This demand for money was

clearly an attempt to unlawfully take the property of Complainant, i.e. a theft. See 18 Pa.C.S,A. §

3921 (a) An attempted theft constitutes an activity "in the course of committing a theft" under 18

Pa.C.S.A. §§ 3701(a)(1) and (a)(2). Complainant's testimony that Defendant backed up this

threat by brandishing a fireann provides sufficient evidence to show that Defendant put

Complainant in fear of immediate serious bodily injury because the finder of fact may "infer that

a victim was in mortal fear" in such a case. Hopkins, 747 A.2d at 914-915 Therefore, there was

sufficient evidence to find Defendant guilty of robbery beyond a reasonable doubt.

Defendant argues in his Statement of Errors, however, that the evidence was insufficient

to support his conviction for robbery because he did not forcibly take property from

Complainant's "person," But as the Superior Court recognized in Commonwealth v. Brandon,

79 A.3d 1192, ] 195 (Pa. 2013), taking property "from the person" is not an element of robbery

pursuant to 18 Pa.C.S.A. § 3701(a)(1)(ii). Defendant appears to be referring to a different

section of the robbery statute, § 3701(a)(1)(v), which provides in part that an individual commits

robbery when he "physically takes or removes property from the person of another by force

however slight" during a theft, This is a less serious form of robbery (a third degree rather than a

first degree felony3) that Defendant was not charged with, Nevertheless, even if Defendant had

been charged under § 3701(a)(1)(v) there still would have been sufficient evidence to find him

guilty of robbery. This is because taking "from the person" includes not only taking from the

victim's body but also taking from his or her "presence" or "control." See Comnwnwealth v.

J l8 Pa,C.SA § 3701(b)(1)

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Moore, 343 Pa.Super. 242, 248, 494 A2d 447, 450 (1985), Commonweulth v. Shamberger, 788

A2d 408, 418 (Pa. Super. 2001) The evidence, as outlined above, is sufficient to show that

Defendant took the complainant's property from his presence or control.

CONCLUSION

The Court finds that in the instant matter the verdict was sufficient as a matter of taw to

fmd Defendant guilty beyond a reasonable doubt of the crime of robbery.

BY THE COURT:

April 8, 2014 ,Ill 1.