Com. v. Bragg, G. , 133 A.3d 328 ( 2016 )

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2016 PA Super 25COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY BRAGG
Appellant No. 2040 EDA 2014
Appeal from the Judgment of Sentence June 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000310-2013
CP-51-CR-0010290-2012 &
Nos. CP-51-CR-0010289-2012
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 05, 2016
Appellant Gregory Bragg appeals from the judgment of sentence
entered by the Honorable Edward C. Wright of the Court of Common Pleas of
Philadelphia County after the trial court convicted Appellant of arson, two
counts of robbery, theft by unlawful taking, possession of an instrument of
crime, receiving stolen property, criminal mischief, and resisting arrest.1
Appellant challenges the sufficiency of the evidence supporting his arson and
robbery convictions and claims the trial court imposed an illegal mandatory
minimum sentence. After careful review, we affirm.
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1
18 Pa.C.S.A. §§ 3301(a)(1)(i), 3701(a)(1)(ii)&(iv), 3921(a), 907(a),
3925(a), 3304(a)(2), and 5104, respectively. Appellant was charged on
three separate dockets.
*Former Justice specially assigned to the Superior Court.
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Appellant was charged with the aforementioned offenses in connection
with two bank robberies in Philadelphia. On May 12, 2012, Appellant held
up the Citizens Bank at 7327 Frankford Avenue by demanding money from
the bank teller. Once the teller placed approximately $2,300 in Appellant’s
bag, Appellant noticed a dye pack attached to the money. Appellant
removed the dye pack, threw it on the floor, and fled. Witnesses saw
Appellant change his clothes in a nearby alley and burn the clothes he wore
in the robbery.
Several months later, on August 11, 2012, Appellant entered the PNC
Bank at 6855 Frankford Avenue, wearing a red Phillies shirt, a baseball hat,
sunglasses, blue surgical gloves, and jeans. Appellant approached the teller,
growled “What are you looking at?,” banged on the counter, and demanded
money from the teller, who placed $3,700 in Appellant’s bag. Appellant fled
the bank and ran towards a residential driveway where a wooden fence
separated the driveway from the backyard of a row home. Appellant
changed his clothes, poured gasoline on the clothes he wore in the robbery,
and lit them on fire.
Philadelphia Police Sergeant Dennis Johnson received a radio dispatch
to the robbery at the PNC Bank and observed Appellant attempting to flee
down Knorr Street. After Sergeant Johnson began pursuing Appellant on
foot, Appellant threw the stolen money in a trashcan. When Sergeant
Johnson saw Appellant had a knife, he pulled out his firearm and ordered
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Appellant to drop his weapon. Backup officers arrived to help Sergeant
Johnson place Appellant in custody.
Several eyewitnesses identified Appellant as the perpetrator of the
robbery at PNC Bank. Later that evening, Appellant gave a formal written
confession, admitting he had robbed PNC Bank. On September 7, 2012,
Appellant gave a similar written confession to admit he had also committed
the May 2012 robbery of Citizens Bank.
Appellant waived his right to a jury trial and proceeded to a bench
trial, where the trial court convicted him of the aforementioned offenses. On
June 19, 2014, the trial court imposed an aggregate term of ten to twenty
years’ imprisonment. On July 18, 2014, Appellant filed this timely appeal.
Appellant raises three issues for our review on appeal:
1) The evidence was insufficient as a matter of law to convict
[Appellant] of the crime of arson as set forth in 18 Pa.C.S.A. § 3301
or § 3301(a.1).
2) The evidence was insufficient as a matter of law to convict
[Appellant] of the crime of robbery as set forth in 18 Pa.C.S.A. §§
3701(a)(1)(i), 3701(a)(1)(ii), or 3701(a)(1)(iii).
3) [Appellant] was illegally sentenced pursuant to 42 Pa.C.S.A. § 9714
insofar as that statute, as written, violates [Appellant’s] rights
under the Sixth Amendment to the U.S. Constitution (made
applicable in this matter by the Fourteenth Amendment to the U.S.
Constitution) and Article I, § 9 of the Pennsylvania Constitution.
Appellant’s Concise Statement pursuant to Pa.R.A.P. 1925(b), 11/7/14, at 2.
In reviewing Appellant’s challenges to the sufficiency of the evidence
supporting his convictions, our standard of review is as follows:
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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 on the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part[,] or none of the evidence.
Commonwealth v. Yong, 120 A.3d 299, 311 (Pa.Super. 2015) (citation
omitted).
Appellant first claims there was insufficient evidence to support his
arson conviction under Section 3301(a)(1)(i) of the Crimes Code, which
provides in relevant part:
A person commits a felony of the first degree if he intentionally
starts a fire or causes an explosion, or if he aids, counsels, pays
or agrees to pay another to cause a fire or explosion, whether on
his own property or on that of another, and if: (i) he thereby
recklessly places another person in danger of death or bodily
injury, including but not limited to a firefighter, police officer or
other person actively engaged in fighting the fire…
18 Pa.C.S.A. § 3301(a)(1)(i). Appellant claims the Commonwealth failed to
establish that he placed another person in danger of death or serious bodily
injury when he started the fire in the residential driveway. We disagree.
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The Commonwealth presented evidence that Appellant threw his
clothes upon a residential driveway of an apartment building, poured a bottle
of gasoline onto the pile of clothing, and ignited a fire with a lighter. The fire
scorched a cinderblock wall and a wooden fence which separated the
driveway from a yard filled with heavy vegetation, which also began to burn.
A block of row homes was located at the end of the yard.
The Commonwealth presented the expert testimony of Lieutenant
Edward Manko, Assistant Fire Marshal, who had testified based on his
twenty-five years of work experience at the fire department. Lieutenant
Manko shared that in his experience, he had witnessed fires set in similar
outdoor locations that spread to surrounding homes. After reviewing the
facts of the instant case, Lieutenant Manko opined that the fire could have
easily spread throughout the scorched vegetation in that neighborhood yard,
placing all the row homes in danger. Accordingly, we conclude that there
was sufficient evidence for the trial court to uphold Appellant’s arson
conviction under Section 3301(a)(1)(i) as he placed another person in
danger of death or serious bodily injury when he started the fire in the
residential driveway.2
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2
Appellant cites to Commonwealth v. McGinnis, 481 Pa. 394, 392 A.2d
1350 (1978), in which the Supreme Court filed a per curiam decision
affirming the trial court’s decision to sustain the defendant’s demurrer as the
prosecution failed to establish the crime of which the defendant was
charged, which included first-degree arson. The decision does not set forth
the facts of the case or offer the Supreme Court’s rationale for its
(Footnote Continued Next Page)
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Second, Appellant claims there was insufficient evidence to support his
first-degree robbery conviction pursuant to Section 3701(a)(1)(ii) of the
Crimes Code, which provides that “[a] person is guilty of robbery if, in the
course of committing a theft, he …(ii) threatens another with or intentionally
puts him in fear of immediate serious bodily injury.” 18 Pa.C.S.A. §
3701(a)(1)(ii). Appellant argues that he did not threaten or place anyone in
fear of immediate serious bodily injury as he entered the banks in broad
daylight, banged on the counter, and demanded money. Instead, Appellant
claims that he should have been convicted of a lesser offense, second-
degree robbery under Section 3701(1)(iv), which only requires evidence that
the defendant “threatens another with or intentionally puts him in fear of
immediate bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(iv).
This Court has held that in order “to sustain a conviction under §
3701(a)(1)(ii), the Commonwealth need not prove a verbal utterance, but
may show aggressive actions that threaten serious bodily injury.”
Commonwealth v. Davis, 459 A.2d 1267, 1272 (Pa.Super. 1983). In
Davis, a defendant entered a pipe shop through the store window, told the
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(Footnote Continued)
conclusion. Our Supreme Court has clearly emphasized that such per curiam
decisions have no precedential effect and their legal significance is limited to
setting out the law of the case. Commonwealth v. Thompson, 604 Pa.
198, 213-14, 985 A.2d 928, 937-38 (2009). See also Commonwealth v.
Tilghman, 543 Pa. 578, 673 A.2d 898, 904 (1996) (establishing that a per
curiam order has precedential force only if it expressly affirms on the basis
of the lower court opinion).
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clerk to get back, and removed money from the cash register. As the
Superior Court found that Appellant’s mode of entry and his warning to the
clerk were aggressive and implied a threat to the victim’s safety, the
Superior Court upheld the defendant’s robbery conviction under Section
3701(a)(1)(ii).
Similarly, in the instant case, Appellant’s aggressive actions placed
employees and customers of PNC Bank in fear of serious bodily injury.
Appellant entered the bank, disguised himself with sunglasses and a baseball
cap, and equipped with surgical gloves to conceal his fingerprints. When he
reached the teller, he sneered, “What are you looking at?” Appellant then
banged his fists on the counter and demanded that the teller place only
large bills in his bag. 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). Accordingly, we conclude that the
trial court did not err in finding sufficient evidence to support Appellant’s
robbery conviction under Section 3701(a)(1)(ii).
Lastly, Appellant claims the trial court imposed an illegal mandatory
minimum sentence for his arson conviction in violation of Alleyne v. United
States, ___ U.S.___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Appellant
received a ten-year mandatory minimum sentence pursuant to 42 Pa.C.S.A.
§ 9714(a) based on his prior conviction for burglary of an occupied
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residence, which constituted a crime of violence. Section 9714 provides in
relevant part:
(a) Mandatory sentence.—
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time
of the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary. Upon a second
conviction for a crime of violence, the court shall give the
person oral and written notice of the penalties under this
section for a third conviction for a crime of violence.
Failure to provide such notice shall not render the offender
ineligible to be sentenced under paragraph (2).
42 Pa.C.S.A. § 9714(a)(1).
In Alleyne, the Supreme Court of the United States established that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S.Ct. at 2155. However, the Supreme Court has recognized a
narrow exception to this rule for prior convictions. Id. at 2160, n.1 (citing
Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140
L.Ed.2d 350 (1998)). In Commonwealth v. Reid, 117 A.3d 777, 785
(Pa.Super. 2015), this Court specifically found that Section 9714 is not
rendered unconstitutional under Alleyne as it provides for mandatory
minimum sentences based on prior convictions. Accordingly, as Appellant
was similarly sentenced to a mandatory minimum sentence under Section
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9714 for his prior conviction of a crime of violence, Appellant’s sentencing
challenge has no merit.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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