Com. v. Perry, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JERMAINE PERRY :
:
Appellant : No. 3028 EDA 2019
Appeal from the Judgment of Sentence Entered September 23, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005959-2018
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: Filed: September 10, 2020
Jermaine Perry appeals from the judgment of sentence of ten to twenty
years of imprisonment imposed after he was convicted of two counts of
robbery and related charges. We affirm.
The trial court summarized the factual history as follows:
In the afternoon of July 16, 2018, Appellant entered Pop’s
Pizza in Bristol, Bucks County, Pennsylvania. The victim, Ok Hwa
Sul, (hereinafter “the Victim”), a sixty-two-year-old South Korean
woman, was working at the store at that time. Appellant was a
near daily visitor to the store and was well-known to the Victim.
Upon Appellant entering the store on July 16, 2018, he purchased
a beverage and a scratch-off lottery ticket. Appellant scratched
the lottery ticket and told the Victim that he won. The Victim
scanned the scratch-off lottery ticket into the lottery machine, but
it indicated that the ticket was not a winner. The Victim gave the
ticket back to Appellant and left the front of the store to go into
the back office.
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* Retired Senior Judge assigned to the Superior Court.
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While in the office, the Victim sat down and looked at the
security video camera that was displayed on a television screen.
The video cameras were positioned in the store to show the front
counter. The Victim saw Appellant behind the counter near the
lottery machine, bending at his waist and leaning forward. The
Victim exited the office, was walking through the kitchen area to
get to the front counter when Appellant appeared, pulled her head
back, and grabbed her around her neck. Appellant continued to
hold the Victim by her neck and forced her to the front counter
where the cash register was located. With his hand still around
her neck, he pressed a sharp object against the right side of her
body. The Victim described the object as a knife and explained
that it was a “medium” sized knife. . . . [W]hen speaking to the
Bristol Township Police Department, the Victim described the knife
as “a very large bladed knife”. In the security camera footage, a
large object with a black handle can be seen in Appellant’s right
hand while he was holding the Victim’s neck with his left hand
before gathering the money from the cash register.
Once Appellant led the Victim to the front counter, he
demanded that she open the cash register. The Victim tried
several times to open the cash register, but was nervous as she
typed in the code and mistakenly entered the wrong code several
times. Appellant told her to “hurry up” and “open it”, to which the
Victim responded, “please don’t kill me. I’ll give you all the
money.” After several attempts, the Victim entered the correct
code and the cash register opened. Appellant took all the money
out of the cash register and exited the store.
After Appellant left the store, the Victim called 911 to report
the incident. At approximately 2:15 p.m., Officer Shawn Lyons of
the Bristol Township Police Department responded to the scene.
Officer Lyons described the Victim as being “in a frantic state”
when he arrived. Officer Lyons was able to obtain the first name
of the suspect from the Victim. Officer Lyons then reviewed the
video footage from the incident and identified Appellant as the
suspect, having recognized him from “previous contact”.
Trial Court Opinion, 12/17/19, at 1-3 (citations omitted).
Appellant was arrested and charged with two counts of robbery,
unlawful restraint, simple assault, recklessly endangering another person, and
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harassment. Appellant proceeded to a jury trial. On July 11, 2019, he was
convicted of all charges. On September 23, 2019, Appellant was sentenced
to a mandatory minimum sentence of ten to twenty years of incarceration for
the robbery conviction. No further penalty was imposed at the remaining
charges.
Appellant did not file a post-sentence motion, but filed a timely notice
of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court thereafter authored its Rule 1925(a)
opinion. Appellant presents the following issue for our review: “Was the
evidence insufficient to convict Appellant of robbery under 18 Pa.C.S.
§ 3701(a)(1)(ii)?” Appellant’s brief at 4.
Appellant’s sole issue challenges the sufficiency of the evidence to
support his robbery conviction. See Appellant’s brief at 8. Our standard of
review when considering a challenge to the sufficiency of the evidence is:
[w]hether 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
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credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)
(citations and quotation marks omitted).
The Pennsylvania Crimes Code defines robbery as, inter alia, when a
defendant, “in the course of committing a theft, threatens another with or
intentionally puts [her] in fear of immediate serious bodily injury.” 18 Pa.C.S.
§ 3701(a)(1)(ii). 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.
“A conviction under [§] 3701(a)(1)(ii) is contingent upon the type of
bodily harm threatened.” Commonwealth v. Ouch, 199 A.3d 918(Pa.Super. 2018) (citing Commonwealth v. Ross, 570 A.2d 86, 87
(Pa.Super. 1990) (holding that evidence was sufficient to show a threat of
serious bodily injury where the defendant threatened the victim with an
upraised knife)). The Commonwealth does not need to prove that the actor
conveyed a verbal threat to the victim in order sustain a conviction under §
3701(a)(1)(ii). See Commonwealth v. Bragg, 133 A.3d 328, 332
(Pa.Super. 2016) (explaining that this Court has never held that brandishing
a weapon or making a specific verbal threat is required in order to sustain a
conviction under § 3701(a)(1)(ii)). Rather, the evidence is sufficient if the
actor’s aggressive actions threatened the victim’s safety. Ouch, supra at
925.
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Here, Appellant concedes that the evidence was sufficient to convict him
of a lesser degree of robbery, 18 Pa.C.S. § 3701(a)(1)(iv), which requires that
the Commonwealth prove immediate bodily injury. See Appellant’s brief at
10. Appellant admits this charge, because he acknowledges that he grabbed
the Victim by the neck and instructed her to open the cash register. Id.
However, he contends that the evidence was insufficient to convict him of §
3701(a)(1)(ii), a first-degree felony, because the Commonwealth failed to
prove that Appellant’s actions placed the Victim in fear of serious bodily
injury, since he did not place the knife to the Victim’s throat. Id.
The trial court disagreed with Appellant and explained its reasoning as
follows:
Here, the evidence presented established beyond a
reasonable doubt the elements of robbery pursuant to subsection
3701(a)(1)(ii) of the Crimes Code. The evidence demonstrated
that during the course of the robbery, Appellant forcefully took
hold of the Victim by her neck and continued to hold onto her neck
while leading her from the kitchen area of the store to the front
counter where the cash register was located. The Victim testified
that the Appellant pressed a “sharp object” against her side which
she described as a medium to large sized knife. The
Commonwealth presented security camera video footage of the
incident in which one can see Appellant’s fist wrapped around a
black-handled object. The security camera video substantiated
the Victim’s testimony that a weapon was used in the course of
the robbery.10 While physically securing her by holding his hand
around her neck and pressing a knife into her side, Appellant
demanded money from the Victim. This evidence clearly
demonstrated threatening, aggressive actions. In response to
Appellant’s actions, the Victim testified that she stated to
Appellant “please, don’t kill me”. Accordingly, the evidence also
showed that the Victim was in actual fear of serious bodily injury.
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10Defense counsel’s primary argument at trial was that
Appellant did not possess or use a weapon while
perpetrating the crime.
The jury weighed all of the evidence presented, the
credibility of the witnesses, and returned a verdict finding
Appellant guilty of robbery pursuant to subsection 3701(a)(1)(ii)
of the Crimes Code. The Commonwealth satisfied its burden and
presented sufficient evidence that Appellant threatened the Victim
with or put her in fear of immediate serious bodily injury by
forcefully holding onto her while pressing a knife to her side.
Because the jury’s verdict was supported by sufficient evidence,
we respectfully submit that it should not be disturbed on appeal.
Trial Court Opinion, 12/17/19, at 5-6 (citations omitted).
Our review of the certified record confirms the trial court’s assessment.
Id. The Victim testified that Appellant held a knife to her torso during the
course of the robbery. If believed, her testimony alone was sufficient to prove
the element of serious bodily injury. See Commonwealth v. Johnson, 180
A.3d 474, 481 (Pa.Super. 2018) (holding that the uncorroborated testimony
of a single witness is sufficient to sustain a conviction for a criminal offense,
so long as that testimony can address and, in fact, addresses, every element
of the charged crime). However, the Commonwealth did not simply rely on
the Victim’s testimony. The Commonwealth corroborated the Victim’s
testimony with surveillance footage, which depicted Appellant holding a dark-
handled object to the Victim’s side. Accordingly, the evidence was sufficient
to sustain Appellant’s conviction for robbery and we affirm his judgment of
sentence on this basis.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/20
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