Com. v. Matthews, P. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL MATTHEWS
Appellant No. 334 MDA 2014
Appeal from the Judgment of Sentence entered January 8, 2014
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0002452-2013
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 04, 2014
Appellant, Paul Matthews, appeals from the trial court’s January 8,
2014 judgment of sentence imposing ten to twenty years of incarceration for
robbery.1 We affirm.
On March 4, 2013, Peter Fouad (“Fouad”), a loss prevention officer at
a Bon Ton department store, observed Appellant stealing three polo shirts.
Fouad watched via closed circuit security television as Appellant entered a
changing room with the shirts. Appellant left the changing room and did not
leave the shirts behind. He left the Bon Ton without paying. Fouad pursued
Appellant, apprehended him, and escorted him back to the Bon Ton’s loss
prevention office. Fouad recovered the shirts from inside Appellant’s jacket
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1
18 Pa.C.S.A. § 3701(a)(1).
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pocket. Appellant remained in the loss prevention office for ten to twenty
minutes, during which Fouad obtained Appellant’s Pennsylvania identification
card. After the ten to twenty minute encounter, Appellant became agitated
and attempted to leave the office. When Foaud told Appellant to stop,
Appellant brandished a large butcher knife, holding it above his head in
apparent preparation to stab Fouad, and demanded that Fouad let him go.
Appellant fled the Bon Ton but was subsequently apprehended by police.
After a November 8, 2013 bench trial at which the parties stipulated to
the foregoing facts, including the ten to twenty minute duration of the
encounter between Appellant and Fouad, the trial court found Appellant
guilty of robbery (18 Pa.C.S.A. § 3701(a)(1)), simple assault (18 Pa.C.S.A.
§ 2701(a)(3)) and retail theft (18 Pa.C.S.A. § 3929(a)(1)). The trial court
imposed sentence as set forth above, and this timely appeal followed.
Appellant argues that the stipulated facts, as set forth above, do not support
his robbery conviction. The Pennsylvania Crimes Code defines robbery as
follows:
(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;
(ii) threatens another with or intentionally puts him in fear
of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any
felony of the first or second degree;
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(iv) inflicts bodily injury upon another or threatens another
with or intentionally puts him in fear of immediate bodily
injury;
(v) physically takes or removes property from the person
of another by force however slight; or
(vi) takes or removes the money of a financial institution
without the permission of the financial institution by
making a demand of an employee of the financial
institution orally or in writing with the intent to deprive the
financial institution thereof.
(2) An act shall be deemed ‘in the course of committing a
theft’ if it occurs in an attempt to commit theft or in flight
after the attempt or commission.
18 Pa.C.S.A. § 3701(a)(1), (2). Appellant argues that his brandishing the
butcher knife in Fouad’s presence did not occur in the course of the theft he
committed.2
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2
Appellant purports to challenge both the weight and sufficiency of the
evidence in support of his robbery conviction. Appellant’s Brief at 5. The
governing standard of review for sufficiency of the evidence is as follows:
The standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the verdict winner, the evidence at trial and all
reasonable inferences therefrom is sufficient for the trier of fact
to find that each element of the crimes charged is established
beyond a reasonable doubt.
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).
Likewise, our standard for reviewing a weight of the evidence challenge is
well-settled:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
(Footnote Continued Next Page)
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This Court has addressed § 3701(a)(2) on several occasions. In
Commonwealth v. Maldonado, 494 A.2d 402 (Pa. Super. 1985), the
defendant stole from the victim a box containing a small amount of cash and
other items. Id. at 404-06. When the victim and a friend confronted the
defendant, the defendant discarded the box and fled. Id. The victim
eventually caught up to the defendant and a scuffle ensued, during which
the defendant stabbed the victim to death. Id. The defendant argued he
did not commit a robbery because the stabbing did not occur in the course of
the theft in accordance with § 3701(a)(2). In rejecting the defendant’s
argument, this Court noted that § 3701(a)(2) encompasses behavior,
_______________________
(Footnote Continued)
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014) (internal
quotation marks omitted), appeal denied, ___ A.3d. ___ (Pa. Oct. 15,
2014). A verdict may be against the weight of the evidence where a trial
court ignores stipulated facts. Commonwealth v. Shapiro, 297 A.2d 161
(Pa. Super. 1971). We note that Appellant preserved his weight of the
evidence challenge in a timely post-sentence motion.
Based on our analysis in the main text, Appellant cannot obtain relief under
either standard.
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including flight, that takes place “after the theft might be said to be
accomplished.” Id. at 408.
In elaborating upon this latter definition, [the] Comment to
the Model Penal Code (upon which the Pennsylvania Crimes Code
definition is based) offers no rule of thumb . . . to delimit the
time and space of ‘flight,’ but does observe that [t]he concept of
‘fresh pursuit’ will be helpful in suggesting realistic boundaries
between the occasion of the theft and a later distinct occasion
when the thief is apprehended.
Id. at 408 (citations and quotation marks omitted). The Maldonado Court
held that the victim was plainly in fresh pursuit of the defendant and that
the facts evinced no break in the chain of events sufficient to separate the
defendant’s discarding of the stolen goods from the stabbing death of the
victim. Id. at 408-09. The Court noted the victim was killed “[w]ithin
seconds, or at most minutes[,]” of the completion of the theft. Id. at 409.
In Commonwealth v. Steward, 762 A.2d 721 (Pa. Super. 2000),
appeal denied, 782 A.2d 545 (Pa. 2001), a loss prevention officer confronted
the defendant immediately after the defendant left a store with stolen
merchandise. Id. at 722. The defendant handed the bag of stolen
merchandise to the officer, admitting that he took it. Id. The defendant
then pushed the officer out of the way and fled. Id. The officer pursued the
defendant, caught him, and suffered a broken finger during the ensuing
scuffle. Id.
In rejecting the defendant’s challenge to the weight and sufficiency of
the evidence in support of his robbery conviction, this Court wrote: “The law
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is clear that an injurious act satisfies the ‘in the course of’ requirement if it is
accomplished ‘in flight after the . . . commission’ of a theft.” Id. at 724
(quoting § 3701(a)(2)). This Court reasoned that the assault of the loss
prevention officer, which occurred only “moments” after the theft and during
the defendant’s flight, satisfied § 3701(a)(2). Id.
Most recently, in Commonwealth v. Alford, 880 A.2d 666 (Pa.
Super. 2005), appeal denied, 890 A.2d 1055 (Pa. 2005), this Court held
sufficient evidence supported the defendant’s robbery conviction where the
defendant stole a constable’s gun and then pistol whipped him with it. Id.
at 675. The defendant argued the theft of the gun was complete before the
physical struggle commenced. Relying on Maldonado and Steward, this
Court disagreed, reasoning that the defendant used the stolen gun “to
facilitate his escape and complete the crime.” Id. at 674-75.
Appellant argues the instant case is distinguishable because ten or
twenty minutes passed in Fouad’s office before Appellant brandished the
butcher knife. In Maldonado, Steward, and Alford, the physical
altercation transpired much nearer in time to the defendant’s completion of
the theft. That is, the altercation occurred immediately after the theft in
Alford and during fresh pursuit in Maldonado and Steward.
We acknowledge that none of our prior published law involved a ten to
twenty minute delay between the theft and the occurrence that elevated the
theft to a robbery. We do not believe that distinction is dispositive here. As
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we explained in Maldonado, “[t]he concept of ‘fresh pursuit’ will be helpful
in suggesting realistic boundaries between the occasion of the theft and a
later distinct occasion when the thief is apprehended.” Maldonado,
494 A.2d at 408 (emphasis added). Furthermore, “[t]he thief’s willingness
to use force against those who would restrain him strongly suggests that he
would have employed it to effect the theft had there been the need for it.”
Id.
Here, Fouad pursued Appellant out of the Bon Ton and apprehended
him moments after he exited the store. Fouad then detained Appellant in
the Bon Ton’s loss prevention office. Thus, the record reveals that Appellant
threatened Fouad with a butcher knife in order to facilitate his escape from a
detention that immediately followed his completion of the theft. The threat
did not occur during a later, distinct occasion.
Drawing inferences in favor of the Commonwealth, as we must in
evaluating the sufficiency of the evidence, the record indicates that Appellant
armed himself with the butcher knife prior to committing the theft, and that
he was willing to use it to escape from the resulting detention. On the facts
of this case, we do not believe the passage of ten or twenty minutes and the
absence of a foot chase preclude Appellant’s robbery conviction. Rather, the
record supports the trial court’s finding that Appellant threatened Fouad with
a butcher knife to facilitate his flight after the commission of a theft in
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accordance with § 3701(a)(2). Thus, the record contains sufficient evidence
in support of Appellant’s robbery conviction.
Concerning Appellant’s weight of the evidence challenge, we observe
that the trial court did not disregard pertinent stipulated facts in reaching its
verdict, nor did the trial court fail to give proper weight to the ten to twenty
minutes that passed while Appellant was detained in the Bon Ton loss
prevention office. The trial court did not abuse its discretion in denying
Appellant’s motion for a new trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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