Com. v. Baer, C. ( 2015 )


Menu:
  • J-S36010-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    CHRISTIAN BAER
    Appellant                No. 1206 WDA 2014
    Appeal from the Judgment of Sentence June 25, 2014
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0016213-2013
    BEFORE: PANELLA, J., JENKINS J., and STRASSBURGER, J.∗
    MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 14, 2015
    Appellant, Christian Baer, appeals from the judgment of sentence
    entered by the Allegheny Country Court of Common Pleas, challenging the
    sufficiency of the evidence and the denial of his petition to file a motion for
    post-sentence relief nunc pro tunc. We reverse the judgment of sentence.
    On November 5, 2013, Shawn Daniel Lynn biked over to Charlene
    Marish’s apartment after she sent him a text message saying that she and
    Baer, her live-in boyfriend, had had a bad argument. Lynn had been talking
    with Marish in her living room for approximately 15 minutes when Baer and
    two or three other people walked through the front door.         Baer became
    aggressive and accused Lynn of being there only to have sex with Marish.
    ____________________________________________
    ∗
    Retired Senior Judge assigned to the Superior Court.
    J-S36010-15
    Baer then took a sword off the wall and, pointing it at Lynn from
    approximately six to eight feet away, told Lynn that he would have to leave
    the apartment naked or Baer would beat him up.
    As Lynn stripped off his clothing, Baer took Lynn’s cellphone from his
    hooded sweatshirt and broke it in half. Lynn then left the apartment naked,
    leaving behind his bicycle and his backpack containing clothing and a
    scrapbook. Over the next several days, Baer sent threatening text and voice
    mail messages to both Lynn and Lynn’s girlfriend, Alexandra Leezajac.
    Lynn reported the incident to police on November 10, 2013.         The
    police filed an affidavit of probable cause, an arrest warrant, and a criminal
    complaint, each accusing Baer of committing Robbery, 18 Pa.C.S.A. §
    3701(a)(1)(v), taking property by “force, however slight,” a third-degree
    felony, and criminal mischief, a summary offense.1      After his arrest, the
    notice of the preliminary hearing, the form waiving the preliminary hearing,
    the commitment form, the bail bond form, and the pre-trial “release of
    prisoner” form each cited only Section 3701(a)(1)(v) as the robbery offense
    ____________________________________________
    1
    Many documents contained in the certified record notate the robbery
    offense using only upper case letters and upper case roman numerals, e.g.,
    “I” for “i” or “V” for “v”, i.e., “18 §3701§§A1I.” Throughout this
    memorandum, except where indicated, we use the accepted legal citation of
    the statute as it was written by the legislature, i.e., “18 Pa.C.S.A. §
    3702(a)(1)(i).”
    -2-
    J-S36010-15
    at issue.   The Magisterial District Court’s docket also lists the robbery
    offense as falling under subsection (v).
    Formal arraignment was scheduled by the Court of Common Pleas for
    January 15, 2014.     The certified record contains a multi-page document
    that, in total, is purportedly the Information filed by the Allegheny County
    District Attorney. See Certified Record (“CR”), Document #2.       The first
    page, which is unnumbered, is titled only “Commonwealth of Pennsylvania
    vs. Christian Julian Baer,” and is date-stamped as having been filed on
    January 14, 2014. That page states that Count 1 is “1837011A1I: Robbery -
    Serious Bodily Injury.” Annexed to that first page is a two-page document,
    numbered at the bottom with “1” and “2,” stamped with the signature of the
    Allegheny County District Attorney stating, in relevant part, that “by this
    information,” the offense charged was:
    Count 1      ROBBERY – SERIOUS BODILY INJURY               Felony 1
    The actor in the course of committing a theft, either
    inflicted serious bodily injury upon Sean Lynn,
    threatened that person or persons with, or put that
    person or persons in fear of immediate serious bodily
    injury, in violation of Section 3701(a)(1)(i) or (ii) of
    the Pennsylvania Crimes Code, Act of December 6,
    1972, 18 Pa.C.S. § 3701(a)(1)(ii) or (ii).
    Information (undated) from District Attorney of Allegheny County at 1, CR,
    document #2, at page numbered 1.
    A bench trial occurred on April 14, 2014. After hearing testimony from
    Lynn and Lynn’s girlfriend, the court announced its verdict, as follows:
    -3-
    J-S36010-15
    “Okay.     I’ve listened to the testimony.   At Count One, Robbery, serious
    bodily injury, I find you guilty. At criminal mischief, summary offense, I find
    you not guilty.” Notes of Testimony – Trial, 4/14/14, at 34.
    On the lower right-hand corner of the first unnumbered page of the
    information, the page indicating that Count 1 is for Robbery under Section
    3701(a)(1)(i), is a handwritten note, dated 4/14/14, stating: “After trial in
    open court, defendant is hereby found guilty on Count 1 and not guilty on
    Count 2.     By the Commonwealth.”     That notation is followed by another
    purportedly handwritten notation (which actually appears to be a stamp):
    “By the court, Machen, J.” On the back of that same page is another stamp,
    with 4/14/14 handwritten therein, that states: “Sentence deferred pending
    pre-sentence report” followed by the handwritten notation: “and BC.
    Sentencing Set on 6/25/14. Defendant in Ag.” That entry is followed by the
    stamp which states: “By the court Machen, J.”          CR, document #2, at
    unnumbered page.
    Sentencing occurred on June 25, 2014. The sentencing transcript that
    is part of the certified record contains absolutely no reference by either the
    court or counsel to the crime for which Baer was being sentenced.           In
    announcing the sentence, the court stated:
    For the record, I have reviewed the Behavior Clinic evaluation
    and the pre-sentence investigation report. I would agree with
    the Commonwealth that a standard range sentence is in order.
    I’m going to sentence you --- the standard range on the low end
    is 36 to 48 months. I’m going to sentence you to [3] to [10]
    -4-
    J-S36010-15
    years in the State Penitentiary to be followed by a period of ten
    years consecutive probation[.]
    Notes of Testimony – Sentencing, 6/25/14, at 5-6.
    The written sentencing order signed by the trial court states that Baer
    was found guilty of Robbery-Inflict Serious Bodily Injury, 18 Pa.C.S.A. §
    3701(a)(1)(i), and sentenced to three to ten years’ incarceration on that
    conviction.   See   CR,    document     #4.    The     document       entitled   “Court
    Commitment     State      or   County   Correctional   Institution”     matches    the
    sentencing order and indicates that Baer was sentenced to confinement for
    the offense of “Robbery-Inflict Serious Bodily Injury,” 18 Pa.C.S.A. §
    3701(A)(1)(i). CR, document #5.
    Baer did not file a post-sentence motion within 10 days of the
    judgment of sentence. On July 17, 2014, he filed a “post-sentence motion
    nunc pro tunc,” which the trial court denied.          He timely appealed to this
    Court.
    Baer raises the following issues:
    a. Whether the evidence was insufficient as a matter of law to
    convict Mr. Baer of Count 1 – Robbery (inflict Serious Bodily
    Injury) when the Commonwealth failed to prove, beyond od a
    reasonable doubt, that Mr. Baer, in the course of committing
    a theft, inflicted serious bodily injury upon Lynn, as required
    by 18 Pa.C.S. § 3701(a)(1)(i)?
    b. Whether the trial court abused its discretion in not granting
    Mr. Baer’s Petition to Accept Post-Sentence Motion Nunc Pro
    Tunc, thereby preventing him from being able to raise on
    direct appeal challenges to the weight of the evidence and the
    discretionary aspects of his sentence?
    -5-
    J-S36010-15
    Appellant’s Brief at 6.
    Appellate review of a challenge to the sufficiency of the evidence is
    well-settled.
    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 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. Valentine, 
    101 A.3d 801
    , 806 (Pa.Super. 2014)
    (citation omitted).
    The offense of Robbery is defined, in relevant part, as:
    (a) Offense defined.--
    (1) A person is guilty of robbery if, in the course of committing a
    theft, he:
    (i) inflicts serious bodily injury upon another;
    [or]
    (ii) threatens another with or intentionally puts him in fear of
    immediate serious bodily injury[.]
    -6-
    J-S36010-15
    18 Pa.C.S.A. § 3701(a)(1)(i) and (ii).
    Baer avers that his conviction under Section 3701(a)(1)(i) is not
    supported by sufficient evidence. He observes that there was no evidence
    presented that he inflicted any bodily injury upon Lynn so as to satisfy the
    element of “inflicts serious bodily injury” set forth in Section 3701(a)(1)(i).
    The Commonwealth responds that Baer was “not convicted of inflicting
    serious bodily injury on the victim during the course of committing a theft.
    Rather,      he    was   convicted   of   violating   18   Pa.C.S.   §   3701(a)(1)(ii),
    threatening the victim with or putting the victim in fear of serious bodily
    injury[.]”        Appellee’s Brief at 2.2      The Commonwealth relies on the
    “Sentencing Guideline Form” annexed to the actual Order of Sentence, a
    portion of the information, and the opinion of the trial court but without
    citation or quotation.3,4
    ____________________________________________
    2
    Without citation to case law, the Commonwealth argues that the conviction
    under subsection (i) was due to a “scrivener’s error” in the use of a capital
    “I” instead of lower case Roman numeral (ii) in the sentencing order.
    Appellee’s Brief at 2.        This argument is specious at best.        The
    Commonwealth is well aware that offenses are frequently notated by the
    police, the prothonotary’s office, and sometimes Chambers’ secretaries with
    upper case letters instead of lower case letters, and with Arabic numbers
    instead of Roman numerals. Contrary to the Commonwealth’s implication, it
    would be unusual for anyone to interpret the use of “I” to actually mean “ii”
    and not “i.”
    3
    Annexed to the Order is a sentencing guideline form indicating that the
    offense was “Robbery-threatens SBI 18 3701 A1II.” CR, document # 4 at
    (unnumbered) 3.      Contrary to the Commonwealth’s assertion, the
    (Footnote Continued Next Page)
    -7-
    J-S36010-15
    Because the Commonwealth has asserted that Baer was convicted
    under subsection (ii), not subsection (i), we must first clarify what exactly
    was the offense with which Baer was charged, tried, and sentenced. This is
    a rather startling proposition given the procedural posture of this case.
    As noted, the Commonwealth’s documents purportedly comprising the
    criminal information are inconsistent with respect to the charged offense.
    One page indicates that Baer was charged only under 18 Pa.C.S. §
    3701(a)(1)(i); another page states that he was charged under either
    subsection (i) (inflicts serious bodily injury) or (ii) (threatens serious bodily
    injury), but not both.        Following trial, the court hand-wrote its verdict as
    “guilty on count 1” on the same document where Count 1 is defined as
    “183701A1I Robbery-Serious Bodily Injury.”
    During the sentencing hearing, neither the trial court nor the
    prosecution indicated exactly upon what crime Baer’s sentence was based.
    In addition, at no time during the sentencing hearing did either party seek
    any sort of clarification from the trial court with respect to the crime for
    which the court was imposing sentence.            Most significantly, the Order of
    Sentence and the Commitment documents each clearly indicate that Baer
    _______________________
    (Footnote Continued)
    sentencing guideline form is not an order of the court and carries no
    dispositive authority.
    4
    The Commonwealth does not argue that subsection (ii) is a lesser included
    offense of (i).
    -8-
    J-S36010-15
    was convicted of “Count 1 – 18 §3701 §§A1I - Robbery -- Inflicts Serious
    Bodily Injury.”   CR, Documents #4 and #5 (emphasis added).           Thus, we
    conclude that Baer was convicted of Robbery – inflicts serious bodily injury,
    18 Pa.C.S.A. § 3701(a)(1)(i). See generally Commonwealth v. Brooker,
    
    103 A.3d 325
    , 329 n.4 (Pa. Super. 2014) (observing sentencing issues are
    to be resolved in accordance with the written sentencing order).
    We now address whether the evidence presented was sufficient to
    prove that Baer inflicted serious bodily injury during the course of a theft. It
    was not.
    “Serious bodily injury” is defined by our legislature 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.A. § 2602.
    At trial, Lynn testified as follows:
    LYNN: [Baer] walked through the door with a couple of friends;
    and he proceeded to threaten me, saying that I was there simply
    to have sex with his girlfriend.
    ***
    COMMONWEALTH:             How did you respond to [ ] Baer’s
    accusations?
    LYNN: I mean, I told him I wasn’t there for that, which I wasn’t;
    and he still proceeded to take it further.
    COMMONWEALTH: Take it further, meaning what?
    LYNN: He grabbed a sword off of the wall and proceeded to
    point it at me and threaten me.
    -9-
    J-S36010-15
    ***
    COMMONWEALTH: And what did he do after he grabbed the
    sword off the wall?
    LYNN: He proceeded to point it at me and tell me I’m either
    leaving basically beat up or I’m leaving with nothing.
    COMMONWEALTH: And what was he doing with the sword
    while he was telling you this?
    LYNN: He was pointing it right at me.
    COMMONWEALTH: And how close was he?
    LYNN: Maybe about six, eight feet away.
    ***
    COMMONWEALTH: After [ ] Baer made the statement to you,
    either you were going to leave beat up or with nothing, what did
    you do?
    LYNN: I proceeded to strip down to nothing.
    COMMONWEALTH: Then what did you do?
    LYNN: I left.
    Notes of Testimony-Trial 4/14/14, at 10–12.
    There was absolutely no testimony or any other evidence, direct or
    circumstantial, showing that Baer inflicted serious bodily injury or that Lynn
    suffered any bodily injury. Thus, “viewing all the evidence admitted at trial
    in the light most favorable to the verdict winner,” we cannot conclude that
    there was sufficient evidence to enable the fact-finder to find every element
    - 10 -
    J-S36010-15
    of 18 Pa.C.S. § 3701(a)(1)(i) beyond a reasonable doubt. Accordingly, we
    reverse the judgment of sentence.5
    Judgment of sentence reversed.             Case remanded for proceedings
    consistent with this memorandum. Jurisdiction relinquished.
    Judge Strassburger concurs in the result.
    Judge Jenkins files a dissenting memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/14/2015
    ____________________________________________
    5
    Due to our disposition, we need not review Baer’s second issue.
    - 11 -
    

Document Info

Docket Number: 1206 WDA 2014

Filed Date: 9/14/2015

Precedential Status: Precedential

Modified Date: 9/14/2015