Commonwealth v. Brown ( 1984 )

ZAPPALA, Justice,

dissenting.

I dissent from the majority’s finding that the evidence was sufficient to support the conviction of robbery. I would reduce the degree of guilt to theft and remand for resentencing.

At the time of trial before Judge Marvin Halbert, the Commonwealth introduced the testimony of the complainant and Officer Sgro which had been elicited during a hearing on a motion to suppress made by the defendant. The Commonwealth did not call any additional witnesses and rested its case on the incorporated testimony of those two witnesses.

The complainant’s testimony of the events was limited:

Q. Briefly describe to his Honor what happened to you that day.

A. Well, I was coming from the bank to cash my check. I went into the clinic to see the doctor that day. I came out, and the black guy was coming in back of me, running. I had this same pocketbook on this side (indicating)—

THE COURT: On what side, please?

THE WITNESS: On this side (indicating)

THE COURT: On her left arm.

THE WITNESS: I was screaming out, hoping that he would give me the pocketbook back and the money.

[Suppression hearing at 45].

The majority’s attempt to distinguish the factual circumstances of this case from a pickpocket “who merely takes the property of another ... using no force or threat of force on the victim” must necessarily fail. Because the record is devoid of any evidence of force, the majority itself is compelled to supply the evidence of an essential element of the crime.

The majority underscores the fact that the complainant had the purse on her arm. Based upon that fact, it finds that force was used. It has effectively concluded that a taking from the person involves force per se. The weakness of this reasoning is demonstrated by its own example of a pickpocket. It is necessary to establish that a modicum of force was used. That goes beyond showing a mere taking from the person. The evidence would have been sufficient if it showed that Appellant engaged in a struggle to get the purse away from the complainant. This is distinguishable from a victim screaming and pursuing the perpetrator after the fact. The evidence would be sufficient also if the complainant had been holding the purse in her hand, in which case Appellant would have had to use at least a slight degree of force to remove it, Commonwealth v. Frison, 301 Pa.Superior Ct. 498, 448 A.2d 18 (1982). In the instant case, the evidence clearly establishes only that the complainant had the purse on her arm. Emphasizing the fact that the complainant was aware of the Appellant’s presence, the majority abruptly alters the concept of force by substituting a state of mind for a physical act to satisfy the elements of robbery. Do we now venture into an unprecedented legal concept that the removal of personal possessions from one’s person without more is “robbery”?

For whatever reason, the Commonwealth decided to proceed to trial with only the testimony from the suppression hearing. The record demonstrates that this use was not contemplated at the time of the suppression hearing. [Suppression hearing at 37]. This may account for the minimal testimony of the complainant as to the relevant facts, but it will not excuse the prosecutor’s failure to present sufficient evidence to establish the elements of robbery. The failure of the Commonwealth to properly develop its case has forced the majority to become not only a finder of fact, but a creator of fact.

If there were sufficient facts to establish the requisite force necessary for robbery, then it was the prosecutor’s duty to introduce the evidence at trial. The issue presented before this Court would have been avoided. The majority then would not have felt the need to fill the void left by a lack of testimony with speculation. It should not now be left to this Court to emasculate reason in order to protect prosecutorial ineptitude. Today the Commonwealth asks us to forego our function as an appellate court and take up the mantle of prosecutor.

I, for one, decline to do so.

LARSEN, J., joins in this dissenting opinion.