Com. v. Stills, M.

J-S01033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MELVIN STILLS
Appellant No. 2539 EDA 2014
Appeal from the Judgment of Sentence August 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004532-2013
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 06, 2016
Appellant, Melvin Stills, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for three counts each of robbery, terroristic threats,
and theft by unlawful taking or disposition, and one count each of criminal
conspiracy, firearms not to be carried without a license, carrying firearms on
public streets or public property in Philadelphia, and persons not to possess
firearms.1 We affirm.
In its opinion, the trial court fully sets forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate
them. We clarify only that on August 7, 2014, the court sentenced Appellant
____________________________________________
1
18 Pa.C.S.A. §§ 3701; 2706; 3921; 903; 6106; 6108; 6105, respectively.
J-S01033-16
to an aggregate term of fifteen (15) to thirty (30) years’ imprisonment, plus
twelve (12) years’ probation.2
Appellant raises two issues for our review:
WHETHER THE EVIDENCE WAS SUFFICIENT TO CONVICT
APPELLANT OF THREE COUNTS OF ROBBERY (F1),
CONSPIRACY AND RELATED CHARGES WHEN THE
COMMONWEALTH FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT THERE WAS A THREAT OF
SERIOUS BODILY INJURY AND/OR ANY SERIOUS INJURY
TO ANY OF THE VICTIMS?
WHETHER THE EVIDENCE WAS SUFFICIENT TO CONVICT
APPELLANT OF THREE COUNTS OF ROBBERY, CONSPIRACY
AND RELATED CHARGES SINCE THE COMMONWEALTH
FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT
APPELLANT WAS THE ONE WHO COMMITTED THE
ROBBERIES?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Diana L.
Anhalt, we conclude Appellant’s issues merit no relief. The trial court’s
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed May 1, 2015, at 4-9 (un-
paginated)) (finding: (1) Victims Mr. Jackson and Ms. Sowell testified that
Appellant pointed gun at third victim, Mr. Hargrove, and took Mr. Hargrove’s
____________________________________________
2
In addition to the crimes listed on the first page of the trial court’s opinion,
the court also convicted Appellant of three counts each of terroristic threats
and theft by unlawful taking or disposition. Further, the events which gave
rise to Appellant’s convictions took place on January 29, 2013.
-2-
J-S01033-16
cell phone; then, Appellant pointed gun at Mr. Jackson and Ms. Sowell and
threatened to shoot them; evidence was sufficient to sustain Appellant’s
robbery convictions related to all three Victims,3 where Appellant threatened
Mr. Jackson and Ms. Sowell during course of theft and intentionally put all
Victims in fear of serious bodily injury;4 (2)5 five minutes after robbery, Ms.
Sowell and Mr. Jackson positively identified Appellant as man who robbed
them; Ms. Sowell and Mr. Jackson testified at trial they were certain
Appellant was perpetrator; Mr. Jackson testified that Appellant was very
close to him during encounter and wore nothing to cover his face; Victims
also testified Appellant was riding distinct bike; police spotted Appellant
riding bike matching unique description moments after receiving call that
robbery was in progress; police also recovered gun Appellant had discarded
that matched Ms. Sowell’s description of gun used; Commonwealth
____________________________________________
3
Appellant’s cohort searched Mr. Jackson and Ms. Sowell but took no
property from those victims.
4
We decline Appellant’s invitation to “reconsider the robbery statute” to hold
that certain gunpoint robberies can constitute second-degree felonies
instead of first-degree felonies. Appellant concedes he lacks any legal
authority to support his position.
5
Notwithstanding his statement of questions presented, Appellant
challenges only the sufficiency of the evidence to sustain his robbery
convictions. Appellant makes no argument whatsoever in support of his
second issue on appeal. Thus, Appellant has abandoned issue two.
Moreover, even if Appellant had properly preserved his second issue, we
would affirm on the basis of the trial court’s opinion.
-3-
J-S01033-16
presented sufficient evidence to prove Appellant was perpetrator).6
Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
____________________________________________
6
On page three of the court’s opinion, the court states: “Officer Rosenbaum
noticed a bulge on Appellant’s ride hip area.” No doubt the court meant
right hip area.
-4-
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FILED'
IN THE COURT OF COMMON PLEAS MAY O 1 2015
FOR THE COUNTY OF PHILADELPHIA
CRIMINAL DIVISION TRIAL Criminal Appeals Unit
First Judicial District of PA
COMMONWEALTH NO.: CJ!-51-CR-ffft64~36-!6t,
OF PENNSYLVANIA : CP-51-CR-0004532-2013
v. Superior Court No.:
2539 EDA 2014
MELVIN STILLS
CP-51-CR-0004532-2013_ comm. v. Stills, Melvin -
Opinion
OPINION
111111111111 I
7288973461
II II Ill II Ill
ANHALT, J.
Appellant in the above-captioned matter appeals the trial court's judgment regarding
Appellant's convictions for Robbery, a felony in the first degree (Fl). The trial court submits the
following Opinion in accordance with the requirements of Pa.R.A.P. 1925(a). For the reasons
set forth herein, the trial court holds that the judgment should be affirmed.
PROCEDURAL HISTORY
On January 29, 2013, police arrested and charged Appellant, Melvin Stills, with three
counts of Robbery, (Fl), Conspiracy (Fl), and several Violations of the Uniform Firearms Act
(VUFA). On May 30, 2014, Appellant waived his right to a jury and proceeded to a bench trial
before the trial court. On that date, the trial court found Appellant guilty of three counts of
Robbery, (Fl), Conspiracy (Fl), and VUFA §6105 (F2), §6106 (F3) and §6108 (Ml).
On August 7, 2014, the trial court sentenced Appellant to ten to twenty years of state
custody on each charge of Robbery and Conspiracy, five to ten years state consecutive for VUFA
§6105, seven years consecutive state probation for VUFA §6106, and five years consecutive
state probation for VUFA §6108.
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Appellant filed this timely appeal of the trial court decision on August 29, 2014.
Appellant filed a 1925(b) statement on September 23, 2014. Appellant argues that the evidence
was insufficient to sustain his conviction for Robbery because the Commonwealth failed to
prove there was a threat of serious bodily injury to any of the victims. Appellant also argues
that the evidence was insufficient to sustain his convictions for three counts of Robbery (Fl)
because the Commonwealth failed to meet its burden and prove that Appellant was the one who
committed the Robberies.
FACTUAL HISTORY
On January 29, 2013 Appellant robbed Tahir Jackson, Dereka Sowell, and James
Hargrove at gun point at the intersection of Fairhill St. and W. Fisher Ave. in Philadelphia,
Pennsylvania. (N.T., 5/30/14, pp. 11-12, 45). While walking to the Rite Aid, Mr. Jackson
observed two men on bikes coming towards him. (N.T., 5/30/14, p. 13). Mr. Jackson testified
that one man was tall, wearing a black jacket and a red hoodie riding a black and silver
Mongoose bike. (N.T., 5/30/14, p. 32). The other man was shorter, wearing a black hoodie with a
black jacket and riding a pink and purple little girl's bike. (N.T., 5/30/14, pp. 32, 34). Mr.
Jackson identified the shorter male on the pink and purple bike as Appellant. (N.T., 5/30/14, p.
34). As the two men approached, Appellant jumped off the bike, pulled out a gun, and pointed it
at Mr. Hargrove while the other man choked Mr. Jackson from behind. (N.T., 5/30/14, p. 13-14).
Ms. Sowell also testified that Appellant was the one with the gun and the other man choked Mr.
Jackson from behind. (N.T., 5/30/14, p. 45). Mr. Jackson was six to eight feet away from Mr.
Hargrove as the Appellant held a gun on him. (N.T., 5/30/14, p. 15).
Mr. Jackson testified that Appellant told Mr. Hargrove "whatever you got in your pocket,
give it up." (N.T., 5/30/14, p. 19). Appellant then took Mr. Hargrove's cell phone. (N.T.,
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5/30/14, p. 20). Ms. Sowell testified that Appellant pulled a gun on her. (N.T., 5/30/14, p. 46).
Appellant threatened Ms. Sowell and said "you need to back up before you get shot." Id. The
other male then checked Mr. Jackson's pockets and after finding nothing, pushed Mr. Jackson to
the ground and grabbed Ms. Sowell. (N.T., 5/30/14, pp. 20-21). When Mr. Jackson tried to get
up and defend Ms. Sowell, Appellant pointed the gun at him and said "you don't want to get
shot." (N.T., 5/30/14, p. 22). Appellant was standing over Mr. Jackson a few feet away as he
held the gun on him. Id. Both Mr. Jackson and Ms. Sowell testified that Appellant did not have
anything covering his face. (N.T., 5/30/14, pp. 24, 50). After finding no items on Ms. Sowell,
Appellant and the other man got back on their bikes and rode off. (N.T., 5/30/14, p. 24).
Mr. Jackson ran to Ms. Sowell's mothers house to call the police who arrived minutes
later. (N.T., 5/30/14, p. 25-26). Police Officer Rosenbaum testified that while surveying the
area for a Robbery in progress, he observed Appellant riding a pink and purple child's bike along
with another male. (N.T., 5/30/14, p. 58, 61). Officer Rosenbaum noticed a bulge on Appellant's
ride hip area. Id. When the officer attempted to stop them, they both fled. (N.T., 5/30/14, p. 58).
During the chase, Officer Rosenbaum observed Appellant discard a firearm from his right hip
area, the same area he saw the bulge. (N.T., 5/30/14, pp. 59-60).
Mr. Jackson and Ms. Sowell both testified that Appellant robbed them at gun point.
(N.T., 5/30/14, pp. 29, 55-56). Ms. Sowell testified that the gun used by Appellant was all black
and resembled a gun that police carry. (N.T., 5/30/14, pp. 45-46). Officer Rosenbaum testified
that Appellant discarded a firearm that he later recovered. (N.T., 5/30/14, pp. 58-59). The gun
was a black Beretta handgun. Id
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DISCUSSION
Appellant argues that the evidence was insufficient to sustain his conviction for Robbery
because the Commonwealth failed to prove there was a threat of serious bodily injury to any of
the victims. Appellant also argues that the evidence was insufficient to sustain his conviction for
Robbery because the Commonwealth failed to prove that Appellant was the one who committed
the Robberies.
In evaluating a challenge to the sufficiency of the evidence, the reviewing court must
determine, whether viewing all the evidence in a light most favorable to the Commonwealth,the
trier of fact could have found that each element of the offense charges was proved beyond a
reasonable doubt. Commw. v. Lee, 956 A.2d 1024, 1027 (Pa. Super Ct. 2008). This standard
applies whether the evidence presented is circumstantial or direct, provided the evidence links
the accused to the crime beyond a reasonable doubt. Commw. v. Morales, 669 A.2d 1003, 1005
(Pa. Super. Ct. 1996). "Unless the evidence presented at trial is 'so weak and inconclusive that
as a matter of law, no probability of fact can be drawn from the combined circumstances,' the
verdict should not be disturbed on appeal." Lee, at 1027-28 (quoting Commw v. Davis, 799 A.2d
860, 866 (Pa. Super. Ct. 2002)).
A person is guilty of Robbery, a felony in the first degree, if in the course of committing
a theft, he "threatens another with or intentionally puts him in fear of immediate serious bodily
injury." 18 Pa.C.S.A. §3701(a)(l)(ii). 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. Commw v. Hansley, 24 A.3d 410, 416 (Pa. Super. Ct. 2011); Commw. v. Jannett,
58 A.3d 818, 821-22 (Pa. Super. Ct. 2012); Commw. v. Valentine, 101 A.3d 801, 807 (Pa. Super.
Ct. 2014). For the purposes of §3701(a)(l)(ii), the court must focus on the nature of the threat
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posed by the assailant and whether he reasonably placed a victim in fear of immediate serious
bodily injury. Hansley, 24 A.3d at 416; Jannett, 58 A.3d at 821-22.
Appellant's actions in pointing a gun and threatening a victim were sufficient evidence to
convict appellant of Robbery. Commw. v. Valentine, 101 A.3d 801 (Pa. Super. Ct. 2014). In
Valentine, Ms. Gibbs was waiting for a bus when appellant approached her from behind with a
gun. Id at 804. Appellant point a handgun at Ms. Gibbs; threatened to shoot her, demanded
money, and took her purse and phone. Id. Appellant was arrested and charged with Robbery. Id.At trial, a jury found appellant guilty of Robbery and appellant appealed. Id.. The court upheld
the conviction finding the evidence was sufficient to convict appellant of Robbery. Id. at 807.
The court determined that appellant's actions in pointing a gun at Ms. Gibbs and threatening to
shoot her would have placed a reasonable person in fear of serious bodily. Id.In the present case, the evidence presented at trial was sufficient to establish that
Appellant placed Mr. Jackson and Ms. Sowell in fear of serious bodily injury. Appellant
pointed a gun at Ms. Sowell and said, "You need to back up before you get shot." (N.T.,
5/30/14, p. 46). Appellant also pointed a gun at Mr. Jackson and said, "You don't want to get
shot." (N.T., 5/30/14, p. 22). Appellant's actions of pointing a gun and threatening Mr. Jackson
and Ms. Sowell reasonably put them in fear of serious bodily injury. Valentine, 101 A.3d at 804.
Terrorizing multiple people during the course of committing one theft is sufficient to
support Robbery convictions for each of those persons. Commw. v. Gilliard, 850 A.2d 1273,
1275 (Pa. Super. Ct. 2004). In Gilliard, a defendant appealed a conviction of five counts of
robbery alleging the evidence was insufficient because he only committed one theft. Id at 1275.
The Pennsylvania Superior Court held that the defendant threatened to inflict serious bodily
injury on all four patrons when he pointed a gun at them and forced them to the back room. Id.Circulated 12/15/2015 02:01 PM
at 1276-1277. The evidence was sufficient to support defendant's convictions because the
defendants' actions were sufficiently threatening to all of the patrons at the bar and placed them
in fear of serious bodily injury. Id.Appellant's single theft is sufficient to support three convictions for Robbery. Like in
Gilliard, the Appellant here threatened multiple people although he committed only a single
theft. 850 A.2d at 1276. Both Mr. Jackson and Ms. Sowell testified that Appellant pointed a gun
at Mr. Hargrove and took his cell phone. (N.T., 5/30/14, pp. 13, 46). Afterwards, Appellant
pointed the gun at Mr. Jackson and Ms. Sowell and threatened them. Id. The evidence is
sufficient to convict Appellant of three counts of Robbery because Appellant intentionally put
Mr. Jackson, Ms. Sowell, and Mr. Hargrove in fear of serious bodily injury when he pointed a
gun at them and threatened them.
Appellant also contends that the evidence was insufficient to sustain his conviction for
Robbery because the Commonwealth failed to prove that Appellant was the one who committed
the robberies. Evidence of identification need not be positive and certain to sustain a conviction.
Commw. v. Orr, 38 A.3d 868, 874 (Pa. Super. Ct. 2011). Identification evidence, which is solely
based on similar height, coloration, and clothing, is not enough to convict a defendant as the
perpetrator of a crime. Commw. v. Crews, 436 Pa. 346 (1970). Although common items of
clothing and general physical characteristics are usually insufficient to support a conviction, such
evidence can be used as other circumstances to establish the identity of a perpetrator. Orr, 38
A.3d at 874. Any indefiniteness and uncertainty in identification testimony goes to weight. Id
Circumstantial evidence alone is sufficient to convict a person; direct evidence is not absolutely
needed. Commw. v. Smith, 283 Pa. Super 360, 423 A.2d 1296 (1981).
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Appellant's contention that the Commonwealth failed to prove that Appellant committed
the robberies is without merit. In assessing whether the totality of the circumstances supports an
independent basis for identification of a defendant as perpetrator, the following factors are to be
considered:
... the opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy of his
prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and the confrontation.
Commw. v. Edwards, 762 A.2d 382, 391 (Pa. Super. Ct. 2000). The most important factor is the
opportunity of the witness to view the suspect at the time of the crime. Id. Five minutes after the
Robbery occurred, both Ms. Sowell and Mr. Jackson positively identified Appellant as the guy
who robbed them. (N.T., 5/30/14, pp. 28-29, 39, 49). At trial, both victims testified that they
were certain that Appellant was the guy who robbed them. (N.T., 5/30/14, pp. 13-14, 46-47). Mr.
Jackson testified that he was about six to eight feet away from Appellant during the initial
encounter. (N.T., 5/30/14, p. 15). Mr. Jackson also testified that when Appellant approached him
with the gun, he was standing right over him. (N.T., 5/30/14, p. 24) Mr. Jackson could see
Appellant entire face because Appellant did not have anything covering his face. (N.T., 5/30/14,
pp. 24, 33, 35).
The Commonwealth also presented evidence of a distinct bike that Appellant was
identified as riding. Testimony by Mr. Jackson and Ms. Sowell indicates that Appellant was
riding a purple and pink child's bike. (N.T., 5/30/14, pp. 32, 34, 53). Additionally, Officer
Rosenbaum spotted the Appellant riding a pink and purple child's bike moments after receiving a
call for Robbery in progress. (N.T., 5/30/14, pp. 58, 61). Lastly, the Commonwealth presented
evidence of a gun that was used during the Robbery. Ms. Sowell testified that the gun used by
Appellant was all black and resembled a gun that police carry. (N.T., 5/30/14, pp. 45-46).
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Officer Rosenbaum testified that he observed Appellant discard a firearm in the alley during his
chase. (N.T., 5/30/14, pp. 58-59). That gun was recovered and identified as a black Beretta
handgun. Id.Mr. Jackson's testimony that Appellant had on a black hoodie when Appellant was
arrested wearing a white hoodie is not dispositive but simply goes to weight. Orr, 38 A.3d at
874. The Robbery took place at night when it was dark outside. (N.T., 5/30/14, p. 31).
The Commonwealth has presented enough evidence to prove beyond a reasonable doubt
that Appellant committed these crimes. Crews, 436 Pa. at 349; Edwards, 762 A.2d at 391; Orr,
38 A.3d at 874. The Commonwealth presented evidence in the form of testimony of two victims
of the Robbery who gave identical accounts about what happened on January 14, 2013. (N.T.,
5/30/14, pp. 13, 20, 45, 48). Both victims testified that Appellant took Mr. Hargrove's cell phone
and held them at gun point. (N.T., 5/30/14, pp. 37, 52). Additionally, both victims and Police
Officer Rosenbaum testified that Appellant was riding a pink and purple child's bike. (N.T.,
5/30/14, pp. 32, 34, 53, 58, 61). The combination of the evidence presented by the
Commonwealth is sufficiently reliable to convict Appellant.
Therefore, there is sufficient evidence to convict Appellant of Robbery, a felony in the
first degree (F 1 ).
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CONCLUSION
For the foregoing reasons, Appellant's three convictions for Robbery (Fl) should be
affirmed.
BY THE COURT:
J~tt:a~
DIANA ANHALT, J.
April 29, 2015
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PROOF OF SERVICE
I hereby certify that on the date set forth below, I caused an original copy
of the Judicial Opinion to be served upon the persons at the following locations, which
service satisfies the requirements of Pa. R.A.P. 122:
Douglas N. Stem, Esquire
1420 Walnut Street, Suite 1201
Philadelphia, PA 19102
Hugh Bums, Esquire
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
By``t/.7fh/.A.
Diana Anhalt, Judge