Com. v. Miller, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES MILLER, : No. 2017 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, July 1, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0006742-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015
James Miller appeals from the judgment of sentence of July 1, 2013,
following his conviction of two counts of robbery. We affirm.
The facts of this case have been aptly summarized by the trial court as
follows:
It was mid-afternoon on May 2, 2012 at the First
Niagara Bank branch on Murray Avenue in the
Squirrel Hill section of the City of Pittsburgh. A man
suddenly appears at the teller window. It was a bit
startling. He is wearing a black jacket and is
carrying a black satchel. His overall appearance is
“very intimidating” to the teller. This person is 3 feet
away. A note is placed on the counter in front of the
teller. “Robbery. Calm,” is what the teller sees.
While the teller could not see this person’s hands or
any weapon, his impression was there may be
“a gun.” The teller unlocked his money drawer and
began to take money out. He placed it on the
counter. The person took this collection of money
and placed it in his satchel. He did so with only one
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hand, leaving the other out of sight. It was not
enough money. “More, More” is the command. The
teller unlocked his 2nd drawer, removed the money
inside it and placed this stack on the counter. The
person grabbed this collection of bills, put it inside
his satchel and left the bank. All total, [appellant]
walked out with $2,461.
Trial court opinion, 3/27/14 at 3 (citations to the transcript omitted).
Following a jury trial held June 25-27, 2013, appellant was found
guilty of two counts of robbery in violation of 18 Pa.C.S.A. § 3701(a)(1)(ii)
and (vi). On July 1, 2013, appellant was sentenced to a mandatory
minimum sentence of 10 to 20 years’ incarceration on Count 1, robbery
under Subsection (a)(1)(ii). Appellant was also ordered to make restitution
of $2,461. There was no further penalty imposed at Count 2, robbery under
Subsection (a)(1)(vi). Timely post-sentence motions were denied by
operation of law on November 25, 2013. A timely notice of appeal was filed
on December 20, 2013. On January 6, 2014, appellant was ordered to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A., by January 30, 2014. Appellant timely
complied, and the trial court filed a Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
1. WHETHER THE TRIAL COURT ERRED IN
HOLDING THAT THE EVIDENCE PRESENTED AT
TRIAL WAS SUFFICIENT TO SUPPORT THE
GUILTY VERDICT AS TO ROBBERY UNDER
18 Pa.C.S. § 3701(a)(1)(ii)?
2. WHETHER THE TRIAL COURT ERRED IN
HOLDING THAT THE GUILTY VERDICT AS TO
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ROBBERY UNDER 18 Pa.C.S. § 3701(a)(1)(ii)
WAS NOT AGAINST THE WEIGHT OF THE
EVIDENCE?
3. WHETHER THE TRIAL COURT ERRED IN
HOLDING THAT THE FACT OF THE
DEFENDANT’S PRIOR CONVICTION, WHICH
RESULTED IN A MANDATORY SENTENCE
PURSUANT TO 42 Pa.C.S. § 9714, NEED NOT
HAVE BEEN PRESENTED TO THE JURY?
Appellant’s brief at 5.
When reviewing a claim challenging the sufficiency of
the evidence, we apply the following standard:
[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 trier of fact while
passing upon the credibility of witnesses
and the weight of the evidence produced,
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is free to believe all, part or none of the
evidence.
Commonwealth v. Bullick, 830 A.2d 998, 1000
(Pa.Super.2003) (quoting Commonwealth v.
Gooding, 818 A.2d 546, 549 (Pa.Super.2003),
appeal denied, 575 Pa. 691, 835 A.2d 709 (2003)).
Commonwealth v. Jannett, 58 A.3d 818, 819-820 (Pa.Super. 2012).
Robbery is defined, in relevant part, as follows:
(1) A person is guilty of robbery if, in the
course of committing a theft, he:
***
(ii) threatens another with or
intentionally puts him in fear of
immediate serious bodily injury;
***
(vi) takes or removes the money of
a financial institution without
the permission of the financial
institution[Footnote 2] by making
a demand of an employee of the
financial instruction orally or in
writing with the intent to
deprive the financial institution
thereof.
“Financial institution”
[Footnote 2]
is defined as “a bank, trust
company, savings trust, credit
union or similar institution.”
18 Pa.C.S.A. § 3701(a)(3).
18 Pa.C.S.A. § 3701(a)(1)(ii), (vi). Robbery under
subsection (ii) is a felony of the first degree; robbery
under subsection (vi) is a felony of the second
degree. Id. at § 3701(b). Further, “[s]erious bodily
injury” is defined as “[b]odily injury which creates a
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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.A. § 2301.
Id. at 820.
The evidence is sufficient to convict a defendant of
robbery under this section “if the evidence
demonstrates aggressive actions that threatened the
victim’s safety.” Commonwealth v. Hansley, 24
A.3d 410, 416 (Pa.Super.2011), appeal denied,
613 Pa. 642, 32 A.3d 1275 (2011). The court must
focus “on the nature of the threat posed by an
assailant and whether he reasonably placed a victim
in fear of immediate serious bodily injury.” Id.(citations omitted). Additionally, this Court has held
that the threat need not be verbal. Id.Id. at 821-822.
Appellant argues that the testimony proved the bank teller,
Earl Matthews (“Matthews”), was, in his words, “frightened”; however, the
Commonwealth failed to prove that appellant threatened him with or
intentionally placed him in fear of “immediate serious bodily injury,” as
required to sustain a conviction under 18 Pa.C.S.A. § 3701(a)(1)(ii).
According to appellant, the only evidence adduced by the Commonwealth
was that Matthews, who was physically separated from appellant by a
barrier, subjectively felt threatened by appellant’s actions. (Appellant’s brief
at 12.) Appellant did not brandish a weapon or verbally threaten Matthews
with physical injury. The note said only that Matthews should remain calm.
While Matthews testified that he thought appellant might have a gun
because he could not see his hands, there was no evidence that appellant
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was intentionally trying to give that impression, e.g., by concealing his hand
in a paper bag or making a gun-like gesture inside his coat pocket.
Appellant gave no verbal indication he had a weapon of any kind.
Although this is a close case, we find Commonwealth v. Swartz, 484
A.2d 793 (Pa.Super. 1984), to be on point. The facts of Swartz are
remarkably similar to the instant case:
The uncontested and unimpeached evidence
established the following facts. Appellant walked
into a branch office of York Bank and Trust. He was
wearing reflective sun glasses. Appellant went up to
a teller, handed her a paper bag, and said “Fill the
bag.” He further said “Quick” and when the teller did
so slowly, he told her “Faster.” After an amount of
money had been placed in the bag, appellant
grabbed the bag and then departed. The teller
stated she was “very scared” and frightened.
Appellant never claimed to be armed, never
expressly threatened the teller, and was not
observed with a weapon or even his hand in his
pocket.
Id. at 794 (emphasis in original). This court in Swartz found that the
above evidence was sufficient to convict the appellant of robbery under
Subsection (a)(1)(iv), inflicting bodily injury upon another or threatening
another with or intentionally putting him in fear of immediate bodily injury.
In so holding, we relied on case law interpreting Subsection (a)(1)(ii),
including Commonwealth v. Davis, 459 A.2d 1267 (Pa.Super. 1983):
The defendant in Davis was convicted under
§ 3701(a)(1)(ii) of robbing a pipe store which was
open all night. He was observed entering the shop
through a small window through which business was
transacted. The defendant told an employee of the
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shop to: “Get back, Get back.” This court held that
Davis’ “mode of entry and his warnings . . . certainly
were aggressive actions which implicitly carried with
them a threat of imminent bodily harm . . . .” When
applied to the facts at hand, Davis requires that we
find that the current evidence showed beyond a
reasonable doubt that appellant, contrary to his
claim, intended to put the teller in fear. A
sun-glassed individual, who approaches a bank teller
with a paper bag and commands that the bag be
filled with currency and exhibits extreme impatience
with a teller creating an atmosphere of extreme
tension, can be reasonably presumed to intend to
inflict fear into the mind of the teller within the
meaning of § 3701(a)(1)(iv).
Swartz, 484 A.2d at 794-795 (footnote omitted).
Matthews testified that appellant was “very intimidating in terms of his
personal appearance.” (Notes of testimony, 6/25-27/13 at 192.) Matthews
explained why he was fearful of appellant: “Because of the intimidation, the
look, the stare. I never had anyone that close up on me that quickly. It’s
kind of like you -- You’re looking away, and then all of a sudden someone
appears there.” (Id. at 197.) “It was a definite scowl and mean look as if,
We need to get this done and do it right now.” (Id. at 206.) Matthews
testified that he felt threatened by appellant’s facial expression. (Id. at
210-211.) Matthews also testified that he thought appellant could have
been armed. (Id. at 193.) Matthews explained that he could not see
appellant’s hands until he removed the money from the counter, and then
appellant used only one hand. (Id. at 196.)
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We determine this evidence was sufficient for the jury to find appellant
guilty of robbery as a first-degree felony under Subsection (a)(1)(ii). While
there was no actual threat or display of force, appellant’s aggressive
mannerisms, including quickly moving towards the bank counter, scowling at
Matthews, and demanding “More, More,” put Matthews in reasonable fear of
immediate serious bodily injury. As in Davis, supra, appellant intentionally
created “an atmosphere of extreme tension.”
Appellant also argues that the facts of this case implicate
Subsection (a)(1)(vi), robbery of a financial institution, not (a)(1)(ii).
(Appellant’s brief at 17.) According to appellant, allowing the jury verdict to
stand would make Subsection (a)(1)(vi) superfluous because in virtually
every situation where (a)(1)(vi) would apply, the defendant could be
convicted under (a)(1)(ii) also. (Id.) Appellant argues that a victim’s
subjective reaction to a robbery should not be the sole distinguishing factor
between a first-degree felony under (a)(1)(ii) and a second-degree felony
under (a)(1)(vi). (Id.)
We addressed the identical argument in Jannett, supra, where the
unarmed defendant handed a note to the bank teller, indicating that he had
a gun and not to activate any alarms or give him any marked bills. Jannett,
58 A.3d at 819. The appellant argued that the facts of his case, where he
was unarmed and merely passed a note to the bank teller, more closely
corresponded to Subsection (a)(1)(vi). We rejected this argument, stating,
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While Appellant is correct that his crimes may also
satisfy the elements of Section 3701(a)(1)(vi), he
offers no support for his assertion that if a defendant
could be prosecuted under multiple subsections, that
the defendant is entitled to proceed under a lesser
charge or the subsection that “most closely aligns”
with his crime.
Id. at 820-821. We noted that Subsection (a)(1)(vi) was added to the
robbery statute in May 2010; however, the Legislature did not amend or
delete the previous forms of robbery, including Subsection (a)(1)(ii): “There
was no indication that the Legislature intended for subsection (vi) to displace
subsection (ii) in cases in which facts proving a first-degree felony had been
clearly established but had taken place in a financial institution.” Id. at 821(quoting the trial court opinion, 7/18/12 at 5). Therefore, appellant could be
convicted of both (a)(1)(ii) and (a)(1)(vi).
Next, appellant challenges the weight of the evidence to support his
conviction. Again, appellant argues that there was no evidence that he
displayed a weapon, was in possession of a weapon, made a physical or
verbal threat, raised his voice, or intended to harm the bank teller.
(Appellant’s brief at 18.) Appellant states that he simply passed the teller a
demand note instructing him to remain calm, took the money, and left the
bank. (Id.)
Appellant’s argument is really more in the nature of a sufficiency
claim. Appellant basically rehashes his argument that Matthews’ testimony
was insufficient to make out all the elements of Section 3701(a)(1)(ii). As
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discussed above, we determine that examining all the evidence, it was
sufficient as a matter of law to sustain appellant’s conviction of first-degree
robbery. The jury obviously found Matthews’ testimony to be credible. The
trial court did not abuse its discretion in denying appellant’s weight of the
evidence claim.
Finally, appellant claims his sentence is illegal. Appellant was
sentenced to a mandatory minimum sentence of 10-20 years pursuant to
42 Pa.C.S.A. § 9714(a)(1), Pennsylvania’s “three strikes” law. Appellant had
a prior conviction in Ohio for a “crime of violence” as that term is defined in
Section 9714(g). According to appellant, Alleyne v. United States, 133
S.Ct. 2151 (U.S. 2013), demands that the alleged fact of appellant’s prior
conviction for a crime of violence be submitted to the jury and found beyond
a reasonable doubt. (Appellant’s brief at 21-22.) Alleyne held that the
defendant’s jury trial rights were infringed where the federal court applied a
federal mandatory minimum statute for brandishing a firearm where the fact
of brandishing was not presented to the jury or established beyond a
reasonable doubt.
This court stated in Commonwealth v. Watley, 81 A.3d 108, 117
(Pa.Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014)
(emphasis added):
The Alleyne decision, therefore, renders those
Pennsylvania mandatory minimum sentencing
statutes that do not pertain to prior
convictions[Footnote 3] constitutionally infirm
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insofar as they permit a judge to automatically
increase a defendant’s sentence based on a
preponderance of the evidence standard.[Footnote 4]
[Footnote 3] The constitutionality of
statutes permitting prior convictions to
automatically increase a defendant’s
sentence beyond the statutory maximum
absent a jury finding has been called in
question based on a similar rationale
discussed in Alleyne v. United States,
U.S. , 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013). See Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000) (Thomas,
J. concurring); Harris v. United States,
536 U.S. 545, 122 S.Ct. 2406, 153
L.Ed.2d 524 (2002) (Thomas, J.
dissenting); Almendarez–Torres v.
United States, 523 U.S. 224, 118 S.Ct.
1219, 140 L.Ed.2d 350 (1998) (Scalia, J.
dissenting) (opining that where prior
convictions result in a sentence that
otherwise exceeds the statutory
maximum a jury determination of the
prior convictions is required); but see
Commonwealth v. Aponte, 579 Pa.
246, 855 A.2d 800 (2004). The precise
issue has yet to be reconsidered by the
United States Supreme Court following
Apprendi. See Alleyne, supra at
2160 n. 1.
[Footnote 4] See e.g., 42 Pa.C.S.
§ 9712(c); 42 Pa.C.S. § 9712.1(c);
42 Pa.C.S. § 9713(c); 42 Pa.C.S.
§ 9718(c); 42 Pa.C.S. § 9719(b);
18 Pa.C.S. § 7508(b); 18 Pa.C.S.
§ 6317(b).
Here, appellant was convicted of a first-degree felony with a statutory
maximum of 10 to 20 years’ imprisonment. 18 Pa.C.S.A. § 1103(1).
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Therefore, even with application of the three strikes statute, appellant’s
sentence did not exceed the otherwise available maximum penalty permitted
by law. Furthermore, even if it did, Almendarez-Torres remains good law.
There, the United States Supreme Court held that the fact of a prior
conviction may be found by a judge at the time of sentencing, rather than
the jury, even if the prior conviction results in an enhancement that
increases the statutory maximum sentence. Therefore, we remain bound by
existing case law, including this court’s en banc decision in
Commonwealth v. Lane, 941 A.2d 34 (Pa.Super. 2008) (en banc),
appeal denied, 960 A.2d 837 (Pa. 2008), rejecting an Apprendi-based
challenge to Section 9714.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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