Com. v. Wakefield, M. ( 2017 )


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  • J-S75006-16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    MARQUISE WAKEFIELD,
    Appellant                  No. 68 EDA 2016
    Appeal from the Judgment of Sentence November 25, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0013650-2013
    CP-51-CR-0013651-2013
    CP-51-CR-0013652-2013
    BEFORE: BOWES, MOULTON AND MUSMANNO, JJ.
    MEMORANDUM BY BOWES, J.:                             FILED MAY 04, 2017
    Marquise Wakefield appeals from the judgment of sentence of an
    aggregate term of ten to twenty years imprisonment which was imposed
    following a bench trial wherein he was found guilty of attempted sexual
    assault, two counts of robbery, burglary, criminal trespass, unlawful
    restraint, false imprisonment, three counts of simple assault, two counts of
    theft, two counts of receiving stolen property, three counts of terroristic
    threats, two counts of possession of an instrument of crime, and recklessly
    endangering another person (“REAP”) arising from two criminal episodes.
    We reverse Appellant’s convictions in part, but affirm the judgment of
    sentence in all other respects.
    J-S75006-16
    Shortly before 2 p.m., on September 8, 2013, Appellant approached
    Alexandra Houlihan. Ms. Houlihan was preparing for a run outside her house
    in Philadelphia. Appellant asked to borrow Ms. Houlihan’s mobile phone to
    call for a ride. Ms. Houlihan obliged Appellant’s request. After placing two
    phone calls, Appellant began to walk away with the phone.      Ms. Houlihan
    followed Appellant and demanded that he return it to her. Appellant lifted
    his shirt to reveal a handgun and threatened to harm Ms. Houlihan if she did
    not turn away.   Rather than turning away, Ms. Houlihan offered Appellant
    money in exchange for the phone. Appellant agreed.
    Ms. Houlihan returned to her home to retrieve some cash. Despite Ms.
    Houlihan telling him to wait outside, Appellant followed her into her house
    and then into her bedroom. Once in the bedroom, Appellant shut the door
    and stood between Ms. Houlihan and the exit. As Ms. Houlihan attempted to
    retrieve money from her handbag, Appellant informed her that he was going
    to have sex with her. Ms. Houlihan tried to dissuade Appellant and warned
    him that her roommate was home and that she would discover him.
    Nevertheless, Appellant proceeded to unbuckle his pants and threatened to
    harm Ms. Houlihan if she did not remain quiet.       Appellant touched Ms.
    Houlihan’s arm causing her to fall onto her bed. She immediately stood up
    and continued to urge Appellant to leave her alone. Appellant then heard
    Ms. Houlihan’s roommate descending the staircase outside her bedroom
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    door. Upon hearing Ms. Houlihan’s roommate, Appellant buckled his pants
    and fled with the money, but left the cellular telephone in the room.
    Less than one-half hour later at a bus stop in the vicinity of Ms.
    Houlihan’s residence, Appellant confronted Marcell Bellinger and Rebecca
    Hale.    Appellant asked the couple for change, but they declined.          Mr.
    Bellinger then attempted to make a call using his cellular phone. Appellant
    removed a firearm and pointed it at Mr. Bellinger’s face.        He demanded
    money and the phone.       Mr. Bellinger responded to Appellant’s threat by
    explaining that Appellant would have to shoot him to obtain the items. After
    a short standoff, Appellant replaced his weapon and walked away.
    As a result of the description of their assailant provided by Ms.
    Houlihan and Mr. Bellinger, police apprehended Appellant in an apartment
    complex nearby the location of each incident.         Officers seized a black,
    unloaded BB gun, made to look identical to a real firearm, from Appellant’s
    waistband.     The police also escorted Ms. Houlihan, Ms. Hale, and Mr.
    Bellinger to Appellant’s location, where they positively identified him as their
    assailant.
    Based on the foregoing, Appellant was charged at three separate
    docket numbers for a litany of offenses related to his altercations with Ms.
    Houlihan, Mr. Bellinger, and Ms. Hale.     Following a bench trial, the court
    found Appellant guilty of the aforementioned crimes and, after a sentencing
    hearing, imposed a sentence of ten to twenty years incarceration. Appellant
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    filed a timely notice of appeal and complied with the court’s order to file a
    Rule 1925(b) statement of errors complained of on appeal. The court then
    authored its Rule 1925(a) opinion. This matter is now ready for our review.
    Appellant raises three issues for our consideration:
    1. Was not [Appellant] erroneously convicted of unlawful restraint
    as there was insufficient evidence that he exposed the
    complainant Alexandra Houlihan to actual risk of serious bodily
    injury?
    2. Was not [Appellant] erroneously convicted of recklessly
    endangering another person as there was insufficient evidence
    that he placed the complainant Marcell Bellinger in danger of
    death or serious bodily injury?
    3. Was not [Appellant] erroneously convicted of theft and receiving
    stolen property as there was no evidence that he took or
    received any property from the complainant Marcell Bellinger?
    Appellant’s brief at 3.
    As each of Appellant’s claimed errors presents a challenge to the
    sufficiency of the evidence, we set forth our standard of review at the
    outset. In evaluating a sufficiency challenge, we evaluate the record in the
    light most favorable to the Commonwealth as verdict winner, giving the
    prosecution the benefit of all reasonable inferences to be drawn from the
    evidence. Commonwealth v. Smith, 
    146 A.3d 257
    , 261 (Pa.Super. 2016).
    Moreover, “[e]vidence will be deemed sufficient to support the verdict when
    it establishes each material element of the crime charged and the
    commission thereof by the accused beyond a reasonable doubt.”            
    Id.
    (citation omitted). However, the Commonwealth may sustain its burden by
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    means of wholly circumstantial evidence. 
    Id.
     In addition, “this Court may
    not substitute its judgment for that of the factfinder, and where the record
    contains support for the convictions, they may not be disturbed.”        
    Id.
    Finally, “the finder of fact is free to believe some, all, or none of the
    evidence presented.” 
    Id. at 262
    .
    First, Appellant argues the Commonwealth failed to present sufficient
    evidence to establish that he unlawfully restrained Ms. Houlihan. In order to
    maintain a conviction for unlawful restraint, the Commonwealth must prove
    that the person knowingly:
    (1)   restrained another person unlawfully in circumstances
    exposing that person to the risk of serious bodily injury; or
    (2)   holds another in a condition of involuntary servitude.
    18 Pa.C.S. § 2902(a).    Serious bodily injury is defined 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. § 2301. Appellant contends that a conviction
    under § 2902(a)(1), for which he was charged and convicted, requires proof
    of actual, rather than merely apparent, harm. He maintains that since the
    BB gun was unloaded, it did not pose a risk of actual harm.
    In support of his position, Appellant relies on Commonwealth v.
    Schilling, 
    431 A.2d 1088
     (Pa.Super. 1981).     In Schilling, the defendant,
    Schilling, while on a date with the victim, compelled her to perform oral sex
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    by placing a pistol against her head. Out of fear, the victim complied. After
    the act was completed, Schilling informed the victim that the weapon was an
    air pistol. Based on these facts, the defendant was convicted of, inter alia,
    unlawful   restraint.   On    appeal,   Schilling   argued,   in    part,    that   the
    Commonwealth had failed to establish that he unlawfully restrained the
    victim since she was not exposed to an actual danger of serious bodily
    injury.
    In reversing Schilling’s conviction for unlawful restraint, this Court
    noted that he was charged and convicted under subsection (a)(1) of the
    relevant statute    as opposed to        subsection   (a)(2),      which    relates to
    involuntary servitude.       We observed that subsection (a)(1) required the
    Commonwealth “to prove as part of its prima facie case that the [defendant]
    put another in actual danger of serious bodily injury.” 
    Id. at 1091-1092
    .
    We analogized the facts to our holding in Commonwealth v. Trowbridge,
    
    395 A.2d 1337
     (Pa.Super. 1978), wherein we found that evidence of an
    apparent ability to inflict harm was insufficient to support a conviction for
    REAP. We held that, with regards to an air rifle, the Commonwealth must
    prove “either that the gun was loaded or that the surrounding circumstances
    were inherently dangerous in order to sufficiently show an actual danger of
    serious bodily injury.” Schilling, 
    supra, at 1092
    . Having determined that
    the Commonwealth failed to prove the air gun was loaded and that the
    circumstances surrounding the crime were not so inherently dangerous as to
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    constitute an actual danger or serious bodily harm, we reversed Schilling’s
    conviction for unlawful restraint.   Compare Commonwealth v. Melvin,
    
    572 A.2d 773
     (Pa.Super. 1990) (defendant’s         possession and use of an
    unloaded sawed-off shotgun to force the victim to drive in search of a third
    party was sufficient proof of inherently dangerous circumstances to support
    unlawful restraint conviction).
    Essentially, the Commonwealth concedes it did not present sufficient
    evidence to convict Appellant under 18 Pa.C.S. § 2902(a)(1). Nevertheless,
    it counters Appellant’s argument by contending that the evidence was
    sufficient to convict Appellant for unlawful restraint under subsection (a)(2).
    It asserts that the fact Appellant was not charged under subsection (a)(2) is
    inconsequential since the conduct described in the information supported
    either offense.   It cites to Commonwealth v. Lohr, 
    468 A.2d 1375
     (Pa.
    1983), for the proposition that, where the information names one crime but
    describes elements of another, the defendant is charged with both crimes.
    The Commonwealth argues that the evidence is sufficient to support the
    finding that Appellant held Ms. Houlihan in a condition of involuntary
    servitude, and since the information described such conduct, Appellant
    would not be prejudiced by a modification of his judgment of sentence to
    reflect the appropriate offense.
    Initially, we find that Lohr, supra, does not control our disposition. In
    Lohr, the defendant was charged with rape, but convicted of statutory rape.
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    He argued trial counsel was ineffective for failing to object to the variance
    between the crime he was charged for (rape) and the crime for which he
    was ultimately convicted (statutory rape).       We reasoned that the conduct
    charged under the rubric of rape did not foreclose the Commonwealth from
    producing evidence of statutory rape at trial since evidence of the conduct
    necessary to establish rape of a thirteen-year-old girl would also establish
    statutory rape. Thus, we found that no such variance existed.
    Herein, Appellant challenges the sufficiency of the evidence adduced at
    trial for unlawful restraint under 18 Pa.C.S. § 2902(a)(1).        Appellant’s
    information specifically listed this charge, but not a charge under §
    2902(a)(2). The court found him guilty under subsection (a)(1). Appellant
    is not arguing that there was a prejudicial variance between the crime
    charged and the crime for which he was convicted, as was the case in Lohr.
    Rather, he is assailing the sufficiency of the evidence for the crime for which
    he was charged and convicted, i.e. unlawful restraint pursuant to 18 Pa.C.S.
    § 2902(a)(1).1 Hence, Lohr is inapposite to this matter.
    We are constrained to find that Schilling, 
    supra,
     rather than Melvin,
    
    supra,
     is controlling. As in Schilling, Appellant employed an unloaded BB
    ____________________________________________
    1
    We observe that unlawful restraint as defined by 18 Pa.C.S. § 2902(a)(2)
    is not a lesser-included offense of unlawful restraint as defined by 18 Pa.C.S.
    § 2902(a)(1), but rather, an alternative grounds by which to convict an
    individual of unlawful restraint.
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    gun in order to threaten Ms. Houlihan.     Appellant’s mere possession of an
    unloaded BB gun did not present a direct risk of serious bodily injury to her.
    Furthermore, in Schilling, we found that the actual consummation of the
    sexual act under duress nevertheless was insufficient to establish that the
    surrounding circumstances created an actual risk of serious bodily injury.
    Herein, Appellant never removed the BB gun from his waistband and exited
    Ms. Houlihan’s residence without a violent incident or sexual contact. Hence,
    even when viewing the evidence in the light most favorable to the
    Commonwealth, the evidence is not sufficient to prove beyond a reasonable
    doubt that Ms. Houlihan was “in actual danger of serious bodily injury” or
    that the surrounding conditions were inherently dangerous.         Schilling,
    supra; Melvin, 
    supra.
     Thus, we vacate Appellant’s conviction for unlawful
    restraint.
    In his second issue, Appellant asserts that there was insufficient
    evidence to convict him of REAP as to Mr. Bellinger and Ms. Hale. A person
    recklessly endangers another “if he recklessly engages in conduct which
    places or may place another person in danger of death or serious bodily
    injury.”     18 Pa.C.S. §   2705.   To sustain a conviction for REAP, “the
    Commonwealth must prove that the defendant had an actual present ability
    to inflict harm and not merely the apparent ability to do so. Danger, not
    merely the apprehension of danger, must be created.” Commonwealth v.
    Cianci, 
    130 A.3d 780
    , 782 (Pa.Super. 2015); Trowbridge, supra at 1340.
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    However, [i]t is not [the defendant himself] that must be [shown] to have
    the present ability to cause death or serious bodily injury to another, it is
    [the defendant’s] actions.”   Commonwealth v. Vogelsong, 
    90 A.3d 717
    ,
    721 (Pa.Super. 2014). Indeed, the Commonwealth “need only establish that
    the defendant’s conduct placed or may have placed another in danger of
    serious bodily injury or death.” 
    Id.
    The trial court reasoned that pointing an unloaded weapon at a person
    may lead others to retaliate. It noted that Mr. Bellinger and Ms. Hale were
    on a busy roadway when Appellant accosted them. The court found that the
    prolonged encounter between Appellant and Mr. Bellinger could have been
    witnessed by other pedestrians or motorists who, in turn, could have
    employed an actual firearm in the couple’s defense. Such a scenario would
    place Mr. Bellinger and Ms. Hale in danger of being caught in the crossfire.
    Thus, the court, relying on Commonwealth v. Reynolds, 
    835 A.2d 720
    (Pa.Super. 2003) concluded that Appellant’s conduct had placed the two in
    danger of serious bodily injury.
    Appellant asserts that this case is distinguishable from Reynolds,
    
    supra.
       In Reynolds, the defendant was charged with REAP following a
    dispute with two individuals at a tavern.       After arguing with the two
    individuals, Reynolds and his wife were removed from the bar by security.
    When the two individuals who had argued with Reynolds emerged from the
    bar a short time later, Reynolds, who was waiting outside, threatened them
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    with a handgun. A fight ensued wherein Reynolds and the two men wrestled
    each other to the ground to gain control of the firearm.         Eventually,
    Appellant regained his feet after a bystander interjected.         He again
    brandished his weapon and threatened the two men before fleeing.
    On appeal, we found the Commonwealth had presented sufficient
    evidence to establish REAP.    We noted that there was no evidence that
    Reynold’s gun was loaded at the time of the dispute. Notwithstanding that
    fact, we found that, even had that not been the case, “the circumstances
    surrounding [Reynold’s] actions presented an actual, foreseeable, risk of
    danger.” 
    Id. at 729
    . We observed that Reynolds lashed out in a bar with
    other customers and staff present, pointed a gun at a person’s forehead, and
    wrestled with the two individuals while possessing a firearm.    Finally, we
    remarked that a bystander had entered the fray in an attempt to dispel the
    scuffle. As such, we concluded that Reynolds had created an actual danger
    by pointing the gun at the men, regardless of whether it was loaded or
    operable.
    Appellant argues that the risk of retaliation apparent in Reynolds was
    not present instantly.   He asserts that he approached the couple on the
    street, rather than in a bar full of people, and hence, the supposed danger
    created by his conduct did not create a reasonably foreseeable risk to Mr.
    Bellinger and Ms. Hale. We disagree.
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    Herein, Appellant approached Mr. Bellinger and Ms. Hale at a bus stop
    on a busy street during the middle of the day. When Mr. Bellinger refused to
    give Appellant money and his cellphone, Appellant pulled a firearm and
    placed it six inches away from Mr. Bellinger’s head.         Mr. Bellinger told
    Appellant that he would “have to shoot me to get [the items].” N.T. Trial,
    4/18/15, at 58. Mr. Bellinger’s remarks resulted in a two-minute stand-off
    during which Appellant continued to aim the weapon at Mr. Bellinger’s face.
    The danger inherent in such a deadlock, in the middle of the day in an urban
    environment, posed a serious risk of harm to Ms. Hale and Mr. Bellinger.
    Appellant’s actions created an immediate threat of retaliation from any
    passerby who happened to chance upon the confrontation. The possibility of
    such retaliation created the risk that Mr. Bellinger or Ms. Hale would suffer
    serious bodily injury if caught in the crossfire. Therefore, we find that, when
    viewing the evidence in the light most favorable to the Commonwealth as
    verdict winner, the Commonwealth presented sufficient evidence to support
    Appellant’s conviction for REAP. Thus, no relief is due.
    In his third issue, Appellant alleges that there was insufficient evidence
    to support his convictions for theft and receiving stolen property as it relates
    to his altercation with Mr. Bellinger.    He contends that since he did not
    obtain any property from Mr. Bellinger, he cannot be found guilty of theft or
    receiving stolen property.
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    In order to be convicted of theft by unlawful taking of movable
    property, a person must unlawfully take, or exercise unlawful control over,
    movable property of another with the intent to deprive him thereof.
    Commonwealth v. Hill, 
    140 A.3d 713
     (Pa.Super. 2016); 18 Pa.C.S. §
    3921(a). The crime of receiving stolen property requires the Commonwealth
    to show that the defendant (1) intentionally acquired possession of the
    movable property of another; (2) with the knowledge or belief that it was
    probably stolen; and (3) the intent to deprive the individual of that property
    permanently. Commonwealth v. Robinson, 
    128 A.3d 261
    , 265 (Pa.Super.
    2015); 18 Pa.C.S. § 3295(a).
    In its Rule 1925(a) opinion, the trial court did not dispute the merits of
    Appellant’s claimed error.    Rather, it stated that Appellant was guilty of
    attempted theft and attempted receipt of stolen property.            The court
    reasoned that when it realized its error, it decided not to impose any further
    penalty on those counts.       Hence, the court concluded the error was
    harmless. In a similar vein, the Commonwealth concedes that Appellant did
    not take possession of Mr. Bellinger’s cellphone or money, but nevertheless,
    requests that this court modify his convictions to reflect the lesser-included
    offenses of attempted theft and attempt to receive stolen property.
    Appellant rebuffs these attempt crimes and requests this Court to limit its
    review to a sufficiency analysis of his conviction for theft and receiving
    stolen property.   As this Court lacks the power to modify sentences or
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    impose convictions, as the Commonwealth urges us to do, we are bound to
    proceed under the rubric of a challenge to the sufficiency of the evidence.
    We begin our examination by noting that any conviction for a crime
    that a person has not committed cannot be harmless error, even where no
    further sentence is imposed.2 That said, we find that the evidence was not
    sufficient to uphold Appellant’s convictions for theft and receiving stolen
    property. The Commonwealth simply presented no evidence that Appellant
    took possession of Mr. Bellinger’s telephone or money.      Rather, Appellant
    approached Mr. Bellinger and asked for change. When Mr. Bellinger denied
    that request, Appellant drew his gun and demanded money and a cellphone.
    However, after a brief stand-off between the two individuals, Appellant fled
    the scene without taking anything from Mr. Bellinger.     Hence, Appellant is
    entitled to relief.
    In sum, we find, when viewing the evidence in the light most favorable
    to the Commonwealth as verdict winner, that the evidence was insufficient
    to support a conviction of unlawful restraint of Ms. Houlihan, sufficient to
    support a conviction of REAP as to Mr. Bellinger and Ms. Hale, and
    insufficient to support convictions for theft and receipt of stolen property
    with regard to Mr. Bellinger. Accordingly, we reverse Appellant’s convictions
    ____________________________________________
    2
    A conviction, regardless of the punishment imposed, becomes a part of a
    person’s criminal history, and thus, applies towards his prior record score
    when calculating sentencing guidelines. See 204 Pa.Code § 303.5.
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    for unlawful restraint, theft, and receiving stolen property as discussed
    above.   Since Appellant did not receive any further punishment for his
    convictions for these offenses, the trial court’s sentencing scheme is not
    disturbed. Thus, we need not vacate his sentence. See Commonwealth v.
    Thur, 
    906 A.2d 552
    , 570 (Pa.Super. 2006).
    Convictions for unlawful restraint, theft, and receipt of stolen property
    reversed. Judgment of sentence affirmed in all other respects. Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/4/2017
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Document Info

Docket Number: Com. v. Wakefield, M. No. 68 EDA 2016

Filed Date: 5/4/2017

Precedential Status: Precedential

Modified Date: 5/4/2017