Com. v. Silva, J. ( 2019 )

J-S77024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN SILVA, :
:
Appellant : No. 1695 EDA 2017
Appeal from the Judgment of Sentence March 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010759-2015,
CP-51-CR-0010769-2015
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 02, 2019
Appellant, Juan Silva, appeals from the March 20, 2017 Judgment of
Sentence entered in the Philadelphia Court of Common Pleas following his
conviction after a non-jury trial for, inter alia, Attempted Robbery of a Motor
Vehicle.1 Appellant challenges the sufficiency of the evidence. After careful
review, we affirm.
The relevant factual and procedural history is as follows. On September
7, 2015, Mark Stephenson entered a restaurant to pick up food while his
girlfriend, N.R., stayed outside to smoke a cigarette. Appellant approached
N.R. and sexually assaulted her. Mr. Stephenson came out of the restaurant,
witnessed the assault, and punched Appellant several times. Appellant fled
the scene while Mr. Stephenson and bystanders chased him.
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1 18 Pa.C.S. § 3702; 18 Pa.C.S. § 901.
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* Retired Senior Judge assigned to the Superior Court.
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During this time, Judy Thorpe-Diallo (“Victim”) was sitting in the driver’s
seat of a parked car waiting for her granddaughter to get her hair styled at a
nearby braid shop. Appellant approached the car and instructed Victim to get
out. While Appellant briefly turned his head away, Victim grabbed her keys
and wallet and jumped out of the car. Victim ran to the braid shop, banged
on the door, and entered the shop. Once inside, Victim saw Appellant sit
inside of her car for ten to fifteen seconds until Mr. Stephenson and the
bystanders approached; Appellant then fled on foot with the men in pursuit.
They eventually caught Appellant and held him until police arrived at the scene
and placed him under arrest.
On November 29, 2016, after a non-jury trial, the trial court convicted
Appellant of Attempted Rape, Attempted Robbery of a Motor Vehicle, and
related offenses.2 On March 20, 2017, the court sentenced Appellant to an
aggregate term of 8½ to 25 years’ incarceration followed by 5 years of
probation. Appellant filed a Post-Sentence Motion, which the trial court denied
on April 27, 2017.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
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2 The trial court convicted Appellant of Aggravated Assault, Attempted Rape
by Forcible Compulsion, Unlawful Restraint, Attempted Sexual Assault, False
Imprisonment, Indecent Exposure, Indecent Assault by Forcible Compulsion,
Simple Assault, Recklessly Endangering Another Person, Attempted Robbery,
Attempted Robbery of Motor Vehicle, Attempted Theft by Unlawful Taking, and
Attempted Receiving Stolen Property.
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Appellant raises the following issue on appeal: “Was not the evidence
insufficient for conviction of [A]ttempted [R]obbery of a [M]otor [V]ehicle
insofar as there was no force used or threatened in the encounter?”
Appellant’s Brief at 3.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
claims regarding the sufficiency of the evidence by considering whether,
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.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and
citation omitted), appeal denied, 183 A.3d 970 (Pa. 2018). “Further, a
conviction may be sustained wholly on circumstantial evidence, and the trier
of fact—while passing on the credibility of the witnesses and the weight of the
evidence—is free to believe all, part, or none of the evidence.” Id. (citation
omitted). “In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.” Id. (citation
omitted).
Appellant challenges his conviction for Attempted Robbery of a Motor
Vehicle, which the Pennsylvania Crimes Code defines as follows: “A person
commits a felony of the first degree if he steals or takes a motor vehicle from
another person in the presence of that person or any other person in lawful
possession of the motor vehicle.” 18 Pa.C.S. § 3702(a). Moreover, “[a]
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person commits an attempt when, with intent to commit a specific crime, he
does any act which constitutes a substantial step toward the commission of
that crime.” 18 Pa.C.S. § 901. This Court has held that to prove the offense
of Robbery of a Motor Vehicle, the Commonwealth must prove the following
elements: “(1) the stealing, taking[,] or exercise of unlawful control over a
motor vehicle; (2) from another person in the presence of that person or any
other person in lawful possession of the vehicle; and (3) the taking must be
accomplished by the use of force, intimidation[,] or the inducement of fear in
the victim.” Commonwealth v. George, 705 A.2d 916, 920 (Pa. Super.
1998). Moreover, “[f]orce is that of which the victim is aware and by reason
of that force, is compelled to part with his property.” Commonwealth v.
Jones, 771 A.2d 796, 799 (Pa. Super. 2001) (citation omitted).
Here, Appellant concedes that the Commonwealth proved the first two
elements of the offense. He only challenges the establishment of the third
element, averring that the Commonwealth’s evidence did not prove that
Appellant used force, intimidation, or the inducement of fear to accomplish
taking the car. Appellant’s Brief at 10. Appellant argues that the
Commonwealth failed to prove that he used or possessed a weapon, made
any overt or implied threats, or raised a hand to Victim. Id. at 11. Therefore,
Appellant contends, the Commonwealth did not prove that he used force or
coercion and the evidence was insufficient to convict him of Attempted
Robbery of a Motor Vehicle. Id. This argument lacks merit.
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Victim stated that she was waiting for her granddaughter to come out
of the braid shop and “then this guy came up to my car and told me to get
out of it.” N.T. Trial, 11/29/16, at 65. Victim testified:
I’m thinking when the guy comes up to my car that my daughter
was having problems in the braid shop about her daughter’s hair
getting done. Then I realized, you know, the man told me to get
out the car. So before I got out the car, I looked up at him. His
head was turned. So then I managed to take my keys and my
wallet and I got out the car. As I proceeded to get out the car to
go to the braid [shop], he got in.
Id. When counsel asked Victim how she felt, she replied, “Scared, because I
didn’t know what was going on.” Id. at 66. Victim testified, “I jump out the
car and I bang on the door to go in the braid shop.” Id. Finally, Victim stated
that she did not give permission or consent for Appellant to get in or take the
car. Id. at 66-67.
Victim’s testimony that she felt scared during the confrontation with
Appellant, jumped out of the car, and banged on the shop door while Appellant
got inside the car is sufficient to prove that Appellant took control over the car
by using force, intimidation, or the inducement of fear. See George, supra
at 920. Moreover, it is reasonable for the fact-finder to conclude that Victim
was aware of Appellant’s demand that she exit the car and it was this demand
that compelled her to exit the car. See Jones, supra at 799. Accordingly,
Appellant’s argument that the Commonwealth did not prove the third element
of Attempted Robbery of a Motor Vehicle is devoid of merit.
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We are unpersuaded by Appellant’s attempts to distinguish this case
from George, supra, and Jones, supra, both cases where this Court found
that there was sufficient evidence to convict a defendant of Robbery of a Motor
Vehicle. Appellant argues that the defendant in George entered a car at
gunpoint and stated “it’s a jack,” but Appellant never used a weapon or made
overt or implied threats. Appellant’s Brief at 10-11 (citing George, supra at
920). Appellant also argues that the defendant in Jones drove away with the
victim in the truck but Appellant asked Victim to get out of the car and never
actually drove the car. Appellant’s Brief at 13 (citing Jones, supra at 797).
It is of no moment that the defendant in George used a weapon or that
the defendant in Jones drove the car with the victim inside. As stated above,
Victim testified that she was scared and got out of the car at Appellant’s
demand, which is sufficient evidence to prove that Appellant used force,
intimidation, or the inducement of fear to take the car from Victim. It is
improper for this Court to reweigh the evidence and give “more weight to
‘absent’ factors than to those found and relied upon by the trial court[.]”
Commonwealth v. Meals, 912 A.2d 213, 222–23 (Pa. 2006).
In sum, the Commonwealth presented sufficient evidence to prove the
force element of Attempted Robbery of a Motor Vehicle and Appellant is not
entitled to relief.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/19
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