Com. v. Johnson, L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LEVERETT EDWARD JOHNSON
Appellant : No. 175 WDA 2018
Appeal from the Judgment of Sentence January 20, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013866-2014,
CP-02-CR-0013867-2014, CP-02-CR-0014229-2014,
CP-02-CR-0014230-2014, CP-02-CR-0014231-2014,
CP-02-CR-0014233-2014, CP-02-CR-0014234-2014,
CP-02-CR-0015392-2014, CP-02-CR-0015534-2014,
CP-02-CR-0016430-2014, CP-02-CR-0016687-2014
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 03, 2019
Appellant, Leverett Edward Johnson, appeals nunc pro tunc from the
judgment of sentence imposed on January 20, 2016 in the Allegheny County
Court of Common Pleas. This case involves a procedural morass related to
the sheer number of docket numbers and the attendant scrivener error in
record keeping and by Appellant. We affirm in part and vacate in part.
The trial court summarized the procedural history as follows:
On' October 21, 2015, Mr. Leverett Johnson [("Appellant")],
plead guilty at criminal complaint numbers 2014-13867; 14233;
and 14251, to three (3) counts of robbery -threatened serious
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bodily injury under 18 Pa.C.S.A. § 3701([(a)(1)](ii);[1] one (1)
count of theft by unlawful taking under 18 Pa.C.S.A. § 3921([a]);
one (1) count of aggravated assault under 18 Pa.C.S.A.
§ 2702([a)(1)]; and one (1) count of criminal mischief under 18
Pa.C.S.A. § 3304([a])3.
1 For the purposes of clarity, it should be noted that
[Appellant] was charged at eighteen different criminal
complaint numbers[, o]nly eleven of which are
contained in this appeal.[2] However, as this was a
crime "spree" it is not possible to leave the additional
cases unaddressed for purposes of a complete
recounting of events.
On the same date this [c]ourt began a stipulated non -jury
trial regarding the remaining cases. At criminal complaint number
2014-13866, this [c]ourt found [Appellant] guilty of one (1) count
of robbery -threatened infliction of serious bodily injury under 18
Pa.C.S.A. § 3701([a)(1)](ii). At criminal complaint number 2014-
14227, this [c]ourt found [Appellant] guilty of one (1) count of
robbery -threatened serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii). At criminal complaint number 2014-14228,
this [c]ourt found [Appellant] guilty of one (1) count of robbery -
threatened serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii). At criminal complaint number 2014-14229,
1 We note that subsections (i) and (ii) are consistently mischaracterized
throughout documents in the cases as (I) and (II). The charging documents,
the trial court, and Appellant also refer to subsection (a) of the charged
statutes as subsection (A). These scrivener errors add to the confusion in the
cases but do not affect the resolution of the issues.
2 As noted by the trial court, Appellant's notice of appeal lists eleven docket
numbers including, inter alia, Allegheny County Docket Numbers 2014-13867
and 2014-14233. However, Appellant fails to make any argument in his brief
related to these two cases to which he pled guilty. Because Appellant has
abandoned any argument related to these docket numbers, any claim related
to them is waived. See Commonwealth v. Woodard, 129 A.3d 480, 509
(Pa. 2015) (holding that "where an appellate brief fails to ... develop an issue
in any other meaningful fashion capable of review, that claim is waived. It is
not the obligation of an appellate court to formulate [an] appellant's
arguments for him.") (citing Wirth v. Commonwealth, 95 A.3d 822, 837
(Pa. 2014)).
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this [c]ourt found [Appellant] guilty of two (2) counts of robbery -
threatened infliction of serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii). The proceedings were then continued and
resumed on November 3, 2015.
On November 3, 2015, at criminal complaint number 2014-
14230, this [c]ourt found [Appellant] guilty of one (1) count of
robbery -threatened infliction of serious bodily injury under 18
Pa.C.S.A. § 3701([a)(1)](ii), as well as one (1) count of theft by
unlawful taking under 18 Pa.C.S.A. § 3921([a]). At criminal
complaint number 2014-14231, this [c]ourt found [Appellant]
guilty of two (2) counts of robbery -threatened infliction of serious
bodily injury under 18 Pa.C.S.A. § 3701([a)(1)](ii), as well as one
(1) count of theft by unlawful taking under 18 Pa.C.S.A.
§ 3921([a]). At criminal complaint number 2014-14232, this
[c]ourt found [Appellant] guilty of one (1) count of robbery -
threatened serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii). At criminal complaint number 2014-14234,
this [c]ourt found [Appellant] guilty of one (1) count of robbery -
threatened infliction of serious bodily injury under 18 Pa.C.S.A.
§ 3071([a)(1)](ii). At criminal complaint number 2014-14235,
this [c]ourt found [Appellant] guilty of one (1) count of robbery -
threatened serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii), as well as one (1) count of theft by unlawful
taking under 18 Pa.C.S.A. § 3921([a]).
At criminal complaint number 2014-14236, this [c]ourt
found [Appellant] guilty of two (2) counts of robbery -threatened
immediate serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii). At criminal complaint number 2014-14248,
this [c]ourt found [Appellant] guilty of robbery under 18 Pa.C.S.A.
§ 3701([a)(1)](iv). At criminal complaint 2014-15392, this
[c]ourt found [Appellant] guilty of one (1) count of robbery -
threatened infliction of serious bodily injury under 18 Pa.C.S.A.
§ 3701([a)(1)](ii), as well as one (1) count of terroristic threats
under 18 [Pa.C.S.] § 2706([a)(1)]. At criminal complaint number
2014-15534, this [c]ourt found [Appellant] guilty of one (1) count
of robbery -threatened infliction of serious bodily injury under 18
Pa.C.S.A. § 3701([a)(1)](ii), as well as one (1) count of terroristic
threats under 18 Pa.C.S.A. § 2706([a)(1)]. At criminal complaint
number 2014-16430, this [c]ourt found [Appellant] guilty of one
(1) count of robbery -threatened infliction of serious bodily injury
under 18 Pa.C.S.A. § 3701([a)(1)](ii), as well as one (1) count of
terroristic threats under 18 Pa.C.S.A. § 2706([a)(1)]. Finally, at
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criminal complaint number 2014-16687, this [c]ourt found
[Appellant] guilty of one (1) count of robbery -take property by
force under 18 Pa.C.S.A. § 3701([a)(1)](v). Sentencing was
waived until January 20, 2016.
On January 20, 2016, this [c]ourt sentenced [Appellant] to
an aggregate sentence of ten (10) to twenty (20) years pursuant
to a mandatory nnininnunn.[3] On September 15, 2016, [Appellant]
filed a pro se Post -Conviction Relief Act [("PCRA")] Petition with
this [c]ourt. On September 19, 2016, this [c]ourt appointed
counsel to represent [Appellant] in his PCRA [petition]. On
June 26, 2017, counsel filed an Amended Petition for Collateral
Relief with this [c]ourt, requesting nunc pro tunc reinstatement of
[Appellant's] rights to a direct appeal. On July 26, 2017, the
Commonwealth filed an Answer to [Appellant's] Amended PCRA
Petition and consented to the reinstatement of [Appellant's] right
to a direct appeal. On August 2, 2017, this [c]ourt reinstated
[Appellant's] appellate rights.
On September 7, 2017, [Appellant] filed a Post -Sentence
Motion with this [c]ourt. On October 13, 2017, the
Commonwealth filed a Response to [Appellant's] Post -Sentence
Motion. On January 3, 2018, this [c]ourt denied [Appellant's]
Post -Sentence Motion in its entirety.
On February 1, 2018, [Appellant] filed a Notice of Appeal to
Superior Court. On February 16, 2018, this [c]ourt ordered that
[Appellant] filed [sic] a [Pa.R.A.P.] 1925(b) Concise Statement of
Errors Complained of on Appeal. On March 13, 2018, this [c]ourt
granted [Appellant] an Extension of Time to File Concise
Statement of Errors Complained of on Appeal. [Appellant] timely
filed his [Rule] 1925(b) Concise Statement of Errors Complained
of on Appeal on April 24, 2018.
Trial Court Opinion, 10/11/18, at 1-4.
In reciting its summary of the facts, the trial court noted that beginning
on September 22, 2014, and ending on October 6, 2014, Appellant committed
3 The mandatory minimum sentences were due to prior convictions. N.T.
(Sentencing), 1/20/16, at 17-18.
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eighteen robberies in various areas of Pittsburgh. Trial Court Opinion,
10/11/18, at 4. While we will not repeat them here, the trial court set forth a
summary of the facts of each of the robberies drawn "from the affidavits of
probable cause[,] which were stipulated to as the factual basis for each case,
[and] which should be submitted to this Superior Court as part of the official
record." See id. at 4-11.
Appellant raises the following two issues on appeal:
I. Was the evidence insufficient as a matter of law to sustain
the convictions under 18 Pa.C.S. § 3701([a])(1)(i)-robbery-
infliction of serious bodily injury at CC #2014H14229, CC
#2014[-]13866, CC # 2014[-]13887,[4] CC #2014[-]15392,
CC #2014H14231, CC #2014H14230, CC #2014[-
]16430, CC #2014H14234, and CC #2014H15534,
insofar as the Commonwealth did not prove beyond a
reasonable doubt that [Appellant], in the course of
committing a theft, inflicted bodily injury upon another in
those cases?
II. Was the evidence insufficient as a matter of law to sustain
the conviction at CC #2014[-]16687 under 18 Pa.C.S.§
3701([a])(1)([v]) (robbery -takes property from another by
force) insofar as the Commonwealth failed to prove beyond
4 Our review of the record reveals that there were no charges identified as
related to Docket Number CC 2014-13887 in this case, nor was this docket
number included in Appellant's notice of appeal. Indeed, the trial court
pointed out that this docket number, which also was included in Appellant's
Pa.R.A.P. 1925(b) statement, "does not correspond to any of [Appellant's]
cases . ." Trial Court Opinion, 10/11/18, at 12 n.2. Despite the trial court's
. .
notification of this apparent error, Appellant failed to correct reference to it in
his Statement of the Questions Involved in his appellate brief, thereby
perpetuating the error and continuing confusion in this case. Moreover, in the
argument section of Appellant's brief, Appellant fails to present any claim
regarding such docket number. It is likely that Appellant has made a scrivener
error in both his Rule 1925(b) statement and his Statement of Questions
Involved pursuant to Pa.R.A.P. 2116.
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a reasonable doubt that any property was taken or
removed, or that [Appellant] used any force, and therefore,
did not establish the elements required to establish an
offense pursuant to Section 3701([a])(1)(v)?
Appellant's Brief at 4 (unnecessary capitalization removed).
Because a determination of evidentiary sufficiency presents a question
of law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the
sufficiency of the evidence, we must determine whether the evidence admitted
at trial and all reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. Commonwealth
v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017). "[T]he facts and
circumstances established by the Commonwealth need not preclude every
possibility of innocence." Commonwealth v. Colon -Plaza, 136 A.3d 521,
525-526 (Pa. Super. 2016) (quoting Commonwealth v. Robertson -Dewar,
829 A.2d 1207, 1211 (Pa. Super. 2003)). It is within the province of the fact -
finder to determine the weight to be accorded to each witness's testimony and
to believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792-793 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.
Super. 2016). Moreover, as an appellate court, we may not re -weigh the
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evidence and substitute our judgment for that of the fact -finder.
Commonwealth v. Rogal, 120 A.3d 994,1001 (Pa. Super. 2015).
In his first issue, Appellant asserts that the evidence was insufficient as
a matter of law to sustain his convictions under 18 Pa.C.S. § 3701(a)(1)(i)-
robbery-infliction of serious bodily injury, at eight designated docket numbers.
Appellant's Brief at 24-26. In particular, Appellant avers that there "was no
evidence presented that any of the victims in the cases at issue suffered
serious bodily injury." Appellant's Brief at 29. This is the sole argument
Appellant proffers for this issue. For the reasons that follow, we will not
address the substance of this claim of insufficient evidence because Appellant
was not convicted of subsection 3701(a)(1)(i).
Appellant does not clarify the basis for his argument, suggesting,
without clearly substantiating, that "[t]he [trial] court's verdict in these cases
appears on page 1 of each Criminal Information and references only the Count
numbers which appear on the same page." Appellant's Brief at 9 n.2. The
Commonwealth suggests that Appellant rests his argument "on the front page
docket sheet of the information[s], which list[] 18 Pa.C.S.A. § 3701(a)(1)(i)
as the charge, rather than recognizing that charging language set forth in the
information encompasses both 18 Pa.C.S.A. § 3701(a)(1)(i) and 18 Pa.C.S.A.
§ 3701(a)(1)(ii). Commonwealth's Brief at 19.
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In the eights correctly referenced cases set forth in Issue One, Docket
Numbers 2014-13866, 2014-14229, 2014-14230, 2014-14231, 2014-14234,
2014-15392, 2014-15534, and 2014-16430, Appellant was charged, inter
alia, with robbery, which provides, in pertinent part, as follows:
§ 3701. Robbery
(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;
18 Pa.C.S. § 3701(a)(1)(i)-(ii). A review of the charging documents reveals
that Appellant was charged with robbery -serious bodily injury, "in violation of
18 Pa.C.S. § 3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code."
Informations in referenced docket numbers (emphasis added). Both the trial
court and the Commonwealth agree with Appellant that the victims in these
cases did not suffer serious bodily injury. Trial Court Opinion, 10/11/18, at
13; Commonwealth's Brief at 18. However, both the trial court and the
Commonwealth make clear that Appellant was convicted of 18 Pa.C.S.
§ 3701(a)(1)(ii), not subsection (i). The trial court stated as follows:
A review of the record indicates that at every criminal
complaint number complained of under this prong of [Appellant's]
5 The robbery section charged in the ninth case, Docket Number 2014-16687,
is different, and that case is addressed in Appellant's second issue.
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argument, the notation "Count 99,999: 18 § 3701 §§ A II-
Robbery-Threat Immed Ser Injury (F1) Offense Disposition:
Charge Changed" can be found. [There was] clearly a clerical
error, where the record was changed from the correct charge to
the incorrect charge. Additionally, a review of the Sentencing
Guidelines in each case reflects the accurate convictions of
Robbery -Threatens Serious Bodily Injury. This Court does not
profess to be perfect, however, it is not so incompetent as to find
[Appellant] guilty in nine (9) cases of an offense of which there is
clearly no proof. In an age of computer technology where the
paperwork of justice has been replaced with keystrokes and "drop -
down menus" the potential for error is greatly increased.
However, this is not an error for which [Appellant] is entitled to
any relief other than the correction of his paperwork.
[Appellant] is correct in that he never inflicted any serious
bodily injury. He did however, threaten to do so when he either
brandished the replica firearm or behaved as if he had a weapon
in his sweatshirt. In multiple robberies he threatened to shoot his
victims if they did not comply with his demands more quickly.
Trial Court Opinion, 10/11/18, at 13-14 (emphasis added).
We have carefully reviewed the certified records. The Informations in
the appealed cases identify the robbery counts consistently as, for example,
the Information at Docket Number 2014-14229, which is representative of all
of the relevant Informations, and states:
Count 1 ROBBERY -SERIOUS BODILY INJURY Felony 1
The actor in the course of committing a theft, either inflicted
serious bodily injury upon [the victim], 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)(i) or (ii).
Count 2 ROBBERY -SERIOUS BODILY INJURY Felony 1
The actor in the course of committing a theft, either inflicted
serious bodily injury upon [the victim], threatened that person
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or persons with, or put that person
or persons in fear of
immediate serious bodily injury, violation of Section
in
3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa. C.S. §3701(a)(1)(i) or (ii).
Information at Docket Number 2014-14229, 12/10/14, at 1 (emphases
added). The description of the acts in the complaint at that Docket Number
states as follows:
18 [Pa.C.S. §] 3701[(a)(1)(ii)] ROBBERY F1 2 COUNTS
The actor, in the course of committing a theft, threatened
another person with, or intentionally put that person in . . .
fear of immediate serious bodily injury, in violation of 18 Pa.
C.S. § 3701(a)(1)(ii).
The actor, in the course of committing a theft, threatened
another person with, or intentionally put that person in . . .
fear of immediate serious bodily injury, in violation of 18 Pa.
C.S. § 3701(a)(1)(ii).
Criminal Complaint at Docket Number 2014-14229, 10/13/14, at 2.
As noted, following Appellant's guilty pleas in three of the cases, the
trial court conducted a stipulated bench trial. N.T., 10/21/15, at 31, 36. Using
Docket Number 2014-14229 as an example, the trial court found Appellant
"guilty of Counts One and Two." Id. at 42. The verdict was recorded as
follows:
And now 10-21 2015 after hearing a stipulated non -jury in open
court, [Appellant] is Adjudged
Guilty of counts 1-2.
By the Court
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The Guideline Sentence Form for Docket Number 2014-14229 identifies
the offense as "Robbery -threatens SBI[6]" as provided in "18 [Pa.C.S. §] 3701
AM." At sentencing on Docket Number 2014-14229, the trial court stated:
[W]ith regard to Count 1, the [c]ourt imposes sentence of no
a
less than seven years and no more than 14 years. Said sentence
will run concurrent with all other sentences imposed.
N.T. (Sentencing), 1/20/16, at 34. The Order of Sentence provides, in
pertinent part:
AND NOW, this 20th day of January, 2016, [Appellant]
having been convicted in the above -captioned case is hereby
sentenced by this [c]ourt as follows. [Appellant] is to pay all
applicable fees and costs unless otherwise noted below:
Count 1-18 § 3701 §§ AlI-Robbery-Inflict Serious Bodily Injury
(F1 )
To be confined for a minimum period of 7 Year(s) and a
maximum period of 14 Year(s) at SCI Camp Hill. The
following conditions are imposed:
Comply -DNA: [Appellant] is to comply with DNA
registration.
Contact -No Contact: [Appellant] is to have no contact
with victim(s) and establishment.
Restitution: [Appellant] is to pay restitution in the
amount of $400.00 to see order filed.
Other: [Appellant] is NOT RRRI ELIGIBLE.
This sentence shall commence on 01/20/2016.
Count 2-18 § 3701 §§ AlI-Robbery-Inflict Serious Bodily Injury
(F1)
6 SBI is serious bodily injury.
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A determination of guilty without further penalty.
Count 99,999-18 § 3701 §§ A1II - Robbery -Threat Immed Ser
Injury (F1)
Offense Disposition: Charge Changed
Count 99,999-18 § 3701 §§ A1II-Robbery-Threat Immed Ser
Injury (F1)
Offense Disposition: Charge Changed
Order of Sentence, 1/20/16, at 1 (emphases added). The paperwork in the
other appealed cases is consistent.
Our careful review of the record reveals that Appellant was charged with
robbery in violation of subsection 3701(a)(1)(i) or (ii). The language of the
Informations put Appellant on notice that he was charged with inflicting
serious bodily injury or threatening bodily injury. It is beyond cavil that
Appellant knew the facts surrounding the offenses charged. Bills of
information are governed by the Pennsylvania Rules of Criminal Procedure,
which require that they include a "plain and concise statement of the essential
elements of the offense substantially the same as or cognate to the offense
alleged in the complaint[.]" Pa.R.Crim.P. 560(6)(5); see also
Commonwealth v. Badman, 580 A.2d 1367, 1371 (Pa. Super. 1990)
(stating that "[t]he information should be read in a common sense manner,
rather than being construed in an overly technical sense."). Importantly,
Pa.R.Crim.P. 560(C) provides that the Information "shall contain the official
or customary citation of the statute and section thereof, or other provision of
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law that the defendant is alleged therein to have violated; but the omission
of or error in such citation shall not affect the validity or sufficiency
of the information." Pa.R.Crim.P. 560(C) (emphasis added). "The purpose
of the information is to advise the accused of the allegations and the crimes
charged, to give sufficient notice to allow the opportunity to prepare a defense,
and to define the issues for trial." Commonwealth v. Kisner, 736 A.2d 672,
674 (Pa. Super. 1999).
We agree with the trial court that a claim regarding the sufficiency of
the evidence under 18 Pa.C.S. § 3701(a)(1)(i) is irrelevant in this case
because Appellant was convicted, instead, of 18 Pa.C.S. § 3701(a)(1)(ii). "A
trial court has inherent, common-law authority to correct 'clear clerical errors'
in its orders." Commonwealth v. Thompson, 106 A.3d 742, 766 (Pa. Super.
2014) (citation omitted). Moreover, this authority "exists even after the 30 -
day time limitation for the modification of orders expires." Id. (citing 42
Pa.C.S. § 5505). The Thompson Court reiterated that "[w]e have previously
concluded that a 'clear clerical error' exists on the face of the record 'when a
trial court's intentions are clearly and unambiguously declared during the
sentencing hearing." Id. (quoting Commonwealth v. Borrin, 12 A.3d 466,
473 (Pa. Super. 2011) (en banc) (citing Commonwealth v. Holmes, 933
A.2d 57, 67 (Pa. 2007) ("concluding the limited, inherent judicial power of the
court to correct patent errors arise in cases 'involving clear errors in the
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imposition of sentences that are incompatible with the record'")). Appellant's
first issue is rejected as meritless.
Appellant's second issue involves only Docket Number 2014-16687. In
its opinion, the trial court described the facts of that case as follows:
On September 24, 2014, at approximately 3:52 p.m.
[Appellant] robbed an Eat N Park on West Liberty Avenue.
[Appellant] entered the restaurant wearing a black hooded jacket,
a bandanna covering his face with a skull pattern and red lips.
The managers noticed [Appellant] enter the restaurant and head
for the cash register. Both managers began to yell "register!" and
[Appellant] seemed to become fearful and ran. [Appellant] would
later confess that he attempted to rob this location.
Trial Court Opinion, 10/11/18, at 6. The Information therein charged as
follows:
Count 1 ROBBERY -FORCE HOWEVER SLIGHT Felony 3
The actor in the course of committing a theft, namely, theft
of United States currency physically took or removed
property from the person or persons of [victim 1] and/or
[victim 2] by force, however slight, in violation of Section
3701(a)(1)(v) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa.C.S.§ 3701(a)(1)(v).
Information, 2/2/15, at 1. The relevant statute provides as follows:
§ 3701. Robbery
(a) Offense defined.-
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
* * *
(v) physically takes or removes property from
the person of another by force however slight[.]
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(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. § 3701(a)(1)(v), (a)(2).
Appellant argues that there was insufficient evidence to support his
conviction and contends the Commonwealth failed to prove beyond a
reasonable doubt "that any property was taken or removed, or that
[Appellant] used any force, and therefore, did not establish the elements
required to establish an offense pursuant to [18 Pa.C.S. §] 3701(a)(1)(v)."
Appellant's Brief at 32. Appellant maintains that he "never touched either of
the managers or anyone else in the restaurant. He did not remove any item
from anyone's person or control. The fact that his hand was reaching into his
pocket and [he was] heading for the cash register did not establish 'force
however slight." Id. at 34. As noted by both Appellant and the
Commonwealth, "force however slight" occurs when the victim is compelled
"to part with the conscious control of [his] property." Commonwealth v.
Brown, 484 A.2d 738, 742 (Pa. 1984); Appellant's Brief at 33;
Commonwealth's Brief at 24.
The trial court addressed this issue as follows:
[Appellant] entered the restaurant wearing a bandana over his
face and his hand reaching into his pocket and headed straight for
the cash register. Any reasonable individual can readily deduce
that [Appellant] was not there to purchase a smiley cookie or
some pie. The fact [Appellant] became scared by the yelling of
the managers and fled without any items is irrelevant. Our State
Supreme Court has held, "that circumstances made it such that
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appellant...failed to obtain and remove money (or other
valuables) is irrelevant because proof of an attempted theft is
sufficient to establish the "in the course of committing a theft"
element of robbery." Commonwealth v. Sanchez, 36 A.3d 24,
[42] (2011). Therefore, [Appellant's] claim is without merit.
Trial Court Opinion, 10/11/18, at 15. We do not agree with the trial court's
reasoning.
The section of the statute charged in this case required that Appellant,
in the course of committing a theft, physically took or removed property from
the person of another by force however slight. 18 Pa.C.S. § 3701(a)(1)(v).
In Commonwealth v. Brandon, 79 A.3d 1192 (Pa. Super. 2013), this Court
stated, "[U]nder the plain language of the robbery statute, the act of
'physically taking or removing property from the person of another' is required
only under subsection (v) of the robbery statute at section 3701(a)(1)." Id.
at 1195. While the trial court is correct that there need not be a completed
theft under this subsection of 3701, we have made clear that there must have
been force used "during an attempted theft." Commonwealth v. Lloyd, 545
A.2d 890, 892 (Pa. Super. 1988).
As the Commonwealth points out,' it failed to prove the element of force
or taking and removing. The Commonwealth avers that Appellant
never touched either victim, nor did he remove money from the
victim's person or control. The fact that [A]ppellant put his hands
in his pockets is not sufficient to establish "force however slight,"
We appreciate the Commonwealth's candor in acknowledging that it failed
to present sufficient evidence to support this conviction. Commonwealth's
Brief at 24-26.
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as it did not compel the victim to hand over money. See
[Commonwealth v.] Brown, [484 A.2d 738,] 741-742 [(Pa.
1984)]. Under a plain meaning of the statute, . the facts are
. .
insufficient to sustain a conviction under this subsection of the
statute.
Commonwealth's Brief at 26. In regard to the use of force, this Court has
stated:
It clear to us that any amount of force applied to a person
is
while committing a theft brings that act within the scope of
robbery under § 3701(1)(a)(v). This force, of course, may be
either actual or constructive. Actual force is applied to the body;
constructive force is the use of threatening words or gestures, and
operates on the mind.
The degree of actual force is immaterial, so long as it is
sufficient to separate the victim from his property in, on or about
his body. Any injury to the victim, or any struggle to obtain the
property, or any resistance on his part which requires a greater
counter attack to effect the taking is sufficient. The same is true
if the force used, although insufficient to frighten the victim,
surprises him into yielding his property.
Brown, 484 A.2d at 741 (internal citation omitted).
In this case, there was no use of force nor separation of property from
the victims, or even an attempt to do so proven beyond a reasonable doubt.
We cannot say that the Commonwealth's evidence that Appellant, wearing a
bandanna, with his hand in his pocket, walking toward the register at the Eat'n
Park Restaurant was sufficient to prove robbery pursuant to 18 Pa.C.S.
§ 3701(a)(1)(v) beyond a reasonable doubt. In the absence of any evidence
to support this element of the crime, we reverse Appellant's conviction at
Docket Number 2014-16687.
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If we can vacate a sentence without upsetting the trial court's overall
sentencing scheme, we need not remand for resentencing. Commonwealth
v. Thur, 906 A.2d 552, 570 (Pa. Super 2006). On the other hand, where the
sentence vacated will affect the sentence imposed by the court, we must
remand. Commonwealth v. Williams, 550 A.2d 579 (Pa. Super. 1988). We
conclude herein that a remand for resentencing is not required. See
Commonwealth v. Robinson, 817 A.2d 1153, 1163 n.14 (Pa. Super. 2003)
(no need to remand for resentencing where trial court's sentencing scheme is
not upset by reversal of conviction and sentence that was imposed
concurrently to sentence on another conviction).
The conviction at Docket Number 2014-16687 is reversed and the
judgment of sentence at that docket number is vacated. The judgments of
sentence of all other docket numbers appealed are affirmed.
Judgment Entered.
J seph D.
Prothonotary
Seletyn,r
Es
Date: 6/3/2019
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